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Employment and Training Administration, Labor § 656.

of an application for permanent alien labor exchange delivered through the

employment certification involving a state’s one-stop delivery system in ac-
professional occupation need not have cordance with the Wagner-Peyser Act.
a bachelor’s or higher degree to qualify United States, when used in a geo-
for the professional occupation. How- graphic sense, means the 50 states, the
ever, if the employer is willing to ac- District of Columbia, Puerto Rico, the
cept work experience in lieu of a bacca- U.S. Virgin Islands, and Guam.
laureate or higher degree, such work United States worker means any work-
experience must be attainable in the er who is:
U.S. labor market and must be stated (1) A U.S. citizen;
on the application form. If the em- (2) A U.S. national;
ployer is willing to accept an equiva- (3) Lawfully admitted for permanent
lent foreign degree, it must be clearly residence;
stated on the Application for Permanent (4) Granted the status of an alien
Employment Certification form. lawfully admitted for temporary resi-
Secretary means the Secretary of dence under 8 U.S.C. 1160(a), 1161(a), or
Labor, the chief official of the U.S. De- 1255a(a)(1);
partment of Labor, or the Secretary’s (5) Admitted as a refugee under 8
designee. U.S.C. 1157; or
Secretary of Homeland Security means (6) Granted asylum under 8 U.S.C.
the chief official of the U.S. Depart- 1158.
ment of Homeland Security or the Sec-
retary of Homeland Security’s des- Subpart B—Occupational Labor
ignee. Certification Determinations
Secretary of State means the chief offi-
cial of the U.S. Department of State or § 656.5 Schedule A.
the Secretary of State’s designee. We have determined there are not
Specific vocational preparation (SVP) sufficient United States workers who
means the amount of lapsed time re- are able, willing, qualified, and avail-
quired by a typical worker to learn the able for the occupations listed below on
techniques, acquire the information, Schedule A and the wages and working
and develop the facility needed for av- conditions of United States workers
erage performance in a specific job- similarly employed will not be ad-
worker situation. Lapsed time is not versely affected by the employment of
the same as work time. For example, 30 aliens in Schedule A occupations. An
days is approximately 1 month of employer seeking a labor certification
lapsed time and not six 5-day work for an occupation listed on Schedule A
weeks, and 3 months refers to 3 cal- may apply for that labor certification
endar months and not 90 work days. under § 656.15.
The various levels of specific voca-
tional preparation are provided below. SCHEDULE A

Level Time
(a) Group I:
(1) Persons who will be employed as
1 ............ Short demonstration. physical therapists, and who possess all
2 ............ Anything beyond short demonstration up to and
including 30 days.
the qualifications necessary to take
3 ............ Over 30 days up to and including 3 months. the physical therapist licensing exam-
4 ............ Over 3 months up to and including 6 months. ination in the state in which they pro-
5 ............ Over 6 months up to and including 1 year. pose to practice physical therapy.
6 ............ Over 1 year up to and including 2 years.
7 ............ Over 2 years up to and including 4 years.
(2) Aliens who will be employed as
8 ............ Over 4 years up to and including 10 years. professional nurses; and
9 ............ Over 10 years. (i) Who have received a Certificate
from the Commission on Graduates of
State Workforce Agency (SWA), for- Foreign Nursing Schools (CGFNS);
merly known as State Employment Secu- (ii) Who hold a permanent, full and
rity Agency (SESA), means the state unrestricted license to practice profes-
agency that receives funds under the sional nursing in the state of intended
Wagner-Peyser Act to provide pre- employment; or
vailing wage determinations to em- (iii) Who have passed the National
ployers, and/or administers the public Council Licensure Examination for


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§ 656.10 20 CFR Ch. V (4–1–05 Edition)

Registered Nurses (NCLEX–RN), ad- Subpart C—Labor Certification

ministered by the National Council of Process
State Boards of Nursing.
(3) Definitions of Group I occupa- § 656.10 General instructions.
tions: (a) Filing of applications. A request for
(i) Physical therapist means a person a labor certification on behalf of any
who applies the art and science of alien who is required by the Act to be
physical therapy to the treatment of a beneficiary of a labor certification in
patients with disabilities, disorders and order to obtain permanent resident sta-
injuries to relieve pain, develop or re- tus in the United States may be filed
store function, and maintain perform- as follows:
ance, using physical means, such as ex- (1) Except as provided in paragraphs
ercise, massage, heat, water, light, and (a)(2), (3), and (4) of this section, an em-
electricity, as prescribed by a physi- ployer seeking a labor certification
cian (or a surgeon). must file under this section and § 656.17.
(ii) Professional nurse means a person (2) An employer seeking a labor cer-
who applies the art and science of nurs- tification for a college or university
ing which reflects comprehension of teacher must apply for a labor certifi-
principles derived from the physical, cation under this section and must also
biological and behavioral sciences. Pro- file under either § 656.17 or § 656.18.
fessional nursing generally includes (3) An employer seeking labor certifi-
making clinical judgments involving cation for an occupation listed on
the observation, care and counsel of Schedule A must apply for a labor cer-
persons requiring nursing care; admin- tification under this section and
istering of medicines and treatments § 656.15.
prescribed by the physician or dentist; (4) An employer seeking labor certifi-
and participation in the activities for cation for a sheepherder must apply for
the promotion of health and prevention a labor certification under this section
of illness in others. A program of study and must also choose to file under ei-
for professional nurses generally in- ther § 656.16 or § 656.17.
cludes theory and practice in clinical (b) Representation. (1) Employers may
areas such as obstetrics, surgery, pedi- have agents or attorneys represent
atrics, psychiatry, and medicine. them throughout the labor certifi-
(b) Group II: cation process. If an employer intends
(1) Sciences or arts (except performing to be represented by an agent or attor-
arts). Aliens (except for aliens in the ney, the employer must sign the state-
performing arts) of exceptional ability ment set forth on the Application for
in the sciences or arts including col- Permanent Employment Certification
lege and university teachers of excep- form: That the attorney or agent is
tional ability who have been practicing representing the employer and the em-
their science or art during the year ployer takes full responsibility for the
prior to application and who intend to accuracy of any representations made
practice the same science or art in the by the attorney or agent. Whenever,
United States. For purposes of this under this part, any notice or other
group, the term ‘‘science or art’’ means document is required to be sent to the
any field of knowledge and/or skill with employer, the document will be sent to
respect to which colleges and univer- the attorney or agent who has been au-
sities commonly offer specialized thorized to represent the employer on
courses leading to a degree in the the Application for Permanent Employ-
knowledge and/or skill. An alien, how- ment Certification form.
ever, need not have studied at a college (2)(i) It is contrary to the best inter-
or university in order to qualify for the ests of U.S. workers to have the alien
Group II occupation. and/or agents or attorneys for either
(2) Performing arts. Aliens of excep- the employer or the alien participate
tional ability in the performing arts in interviewing or considering U.S.
whose work during the past 12 months workers for the job offered the alien.
did require, and whose intended work As the beneficiary of a labor certifi-
in the United States will require, ex- cation application, the alien can not
ceptional ability. represent the best interests of U.S.


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