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Employment and Training Administration, Labor § 656.


evidence of fraud or willful misrepre- at no less than the legally required

sentation in a Schedule A application hourly rate;
filed under § 656.22 of this part or a (D) That the alien will reside on the
sheepherder application filed under employer’s premises;
§ 656.21a(b) of this part. (E) Complete details of the duties to
(B) Documentary evidence submitted be performed by the alien;
pursuant to paragraph (h)(2)(i) of this (F) The total amount of any money
section shall be limited to information
to be advanced by the employer with
relating to possible fraud or willful
details of specific items, and the terms
misrepresentation. The INS may con-
sider this information pursuant to of repayment by the alien of any such
§ 656.31 of this part. advance by the employer;
(G) That in no event shall the alien
(Approved by the Office of Management and be required to give more than two
Budget under control number 1205–0015)
weeks’ notice of intent to leave the em-
[45 FR 83933, Dec. 19, 1980, as amended at 49 ployment contracted for and that the
FR 18295, Apr. 30, 1984; 56 FR 54927, Oct. 23, employer must give the alien at least
two weeks’ notice before terminating
§ 656.21 Basic labor certification proc- employment;
ess. (H) That a duplicate contract has
(a) Except as otherwise provided by been furnished to the alien;
§§ 656.21a and 656.22, an employer who (I) That a private room and board
desires to apply for a labor certifi- will be provided at no cost to the work-
cation on behalf of an alien shall file, er; and
signed by hand and in duplicate, a De- (J) Any other agreement or condi-
partment of Labor Application for Alien tions not specified on the Application
Employment Certification form and any for Alien Employment Certification form;
attachments required by this part with and
the local Employment Service office (iii) (A) Documentation of the alien’s
serving the area where the alien pro- paid experience in the form of state-
poses to be employed. The employer ments from past or present employers
shall set forth on the Application for setting forth the dates (month and
Alien Employment Certification form, as year) employment started and ended,
appropriate, or in attachments: hours of work per day, number of days
(1) A statement of the qualifications worked per week, place where the alien
of the alien, signed by the alien; worked, detailed statement of duties
(2) A description of the job offer for performed on the job, equipment and
the alien employment, including the appliances used, and the amount of
items required by paragraph (b) of this wages paid per week or month. The
section; and total paid experience must be equal to
(3) If the application involves a job one full year’s employment on a full-
offer as a live-in household domestic
time basis. For example, two year’s ex-
service worker:
perience working half-days is the
(i) A statement describing the house-
equivalent of one year’s full time expe-
hold living accommodations;
(ii) Two copies of the employment rience. Time spent in a household do-
contract, each signed and dated by mestic service training course cannot
both the employer and the alien (not be included in the required one year of
by their agents). The contract shall paid experience.
clearly state: (B) Each statement must contain the
(A) The wages to be paid on an hour- name and address of the person who
ly and weekly basis; signed it and show the date on which
(B) Total hours of employment per the statement was signed. A statement
week, and exact hours of daily employ- not in the English language shall be ac-
ment; companied by a written translation
(C) That the alien is free to leave the into the English language certified by
employer’s premises during all non- the translator as to the accuracy of the
work hours except that the alien may translation, and as to the translator’s
work overtime if paid for the overtime competency to translate.


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§ 656.21 20 CFR Ch. V (4–1–04 Edition)

(b) Except for labor certification ap- (A) Shall be those normally required
plications involving occupations des- for the job in the United States;
ignated for special handling (see (B) Shall be those defined for the job
§ 656.21a) and Schedule A occupations in the Dictionary of Occupational Titles
(see §§ 656.10 and 656.22), the employer (D.O.T.) including those for subclasses
shall submit, as a part of every labor of jobs;
certification application, on the Appli- (C) Shall not include requirements
cation for Alien Employment Certification for a language other than English.
form or in attachments, as appropriate, (ii) If the job opportunity involves a
the following clear documentation: combination of duties, for example en-
(1) If the employer has attempted to gineer-pilot, the employer must docu-
recruit U.S. workers prior to filing the ment that it has normally employed
application for certification, the em- persons for that combination of duties
ployer shall document the employer’s and/or workers customarily perform
reasonable good faith efforts to recruit the combination of duties in the area
U.S. workers without success through of intended employment, and or the
the Employment Service System and/ combination job opportunity is based
or through other labor referral and re- on a business necessity.
cruitment sources normal to the occu- (iii) If the job opportunity involves a
pation: requirement that the worker live on
(i) this documentation shall include the employer’s premises, the employer
documentation of the employer’s re- shall document adequately that the re-
cruitment efforts for the job oppor- quirement is a business necessity.
tunity which shall: (iv) If the job opportunity has been or
(A) List the sources the employer is being described with an employer
may have used for recruitment, includ- preference, the employer preference
ing, but not limited to, advertising; shall be deemed to be a job require-
public and/or private employment ment for purposes of this paragraph
agencies; colleges or universities; voca- (b)(2).
tional, trade, or technical schools; (3) The employer shall document that
labor unions; and/or development or its other efforts to locate and employ
promotion from within the employer’s U.S. workers for the job opportunity,
organization; such as recruitment efforts by means
(B) Identify each recruitment source of private employment agencies, labor
by name; unions, advertisements placed with
radio or TV stations, recruitment at
(C) Give the number of U.S. workers
trade schools, colleges, and universities
responding to the employer’s recruit-
or attempts to fill the job opportunity
by development or promotion from
(D) Give the number of interviews
among its present employees, have
conducted with U.S. workers;
been and continue to be unsuccessful.
(E) Specify the lawful job-related Such efforts may be required after the
reasons for not hiring each U.S. worker filing of an application if appropriate
interviewed; and to the occupation.
(F) Specify the wages and working (4) If unions are customarily used as
conditions offered to the U.S. workers; a recruitment source in the area or in-
and dustry, the employer shall document
(ii) If the employer advertised the job that they were unable to refer U.S.
opportunity prior to filing the applica- workers.
tion for certification, the employer (5) The employer shall document that
shall include also a copy of at least one its requirements for the job oppor-
such advertisement. tunity, as described, represent the em-
(2) The employer shall document that ployer’s actual minimum requirements
the job opportunity has been and is for the job opportunity, and the em-
being described without unduly restric- ployer has not hired workers with less
tive job requirements: training or experience for jobs similar
(i) The job opportunity’s require- to that involved in the job opportunity
ments, unless adequately documented or that it is not feasible to hire work-
as arising from business necessity: ers with less training or experience


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Employment and Training Administration, Labor § 656.21

than that required by the employer’s ular Employment Service recruitment

job offer. system.
(6) If U.S. workers have applied for (2) If the employer’s job offer is dis-
the job opportunity, the employer shall criminatory or otherwise unacceptable
document that they were rejected sole- as a job order under the Employment
ly for lawful job-related reasons. Service (ES) Regulations (parts 651–658
(c) The local office shall determine if of this chapter), the local office, as ap-
the application is for a labor certifi- propriate, either shall contact the em-
cation involving Schedule A. If the ap- ployer to try to remedy the defect or
plication is for a Schedule A labor cer- shall return the Application for Alien
tification, the local office shall advise Employment Certification form to the
the employer that the forms must be employer with instructions on how to
filed with an INS or Consular Office remedy the defect. If the employer re-
pursuant to § 656.22, and shall explain fuses to remedy the defect, the local of-
that the Administrator has determined fice shall advise the employer that it is
that U.S. workers in the occupation unable to recruit U.S. workers for the
are unavailable throughout the United job opportunity and that the applica-
States (unless a geographic limitation tion will be transmitted to the Certi-
is applicable) and that the employment fying Officer for determination.
of the alien in the occupation will not (g) In conjunction with the recruit-
adversely affect U.S. workers similarly ment efforts under paragraph (f) of this
employed. section, the employer shall place an ad-
(d) The local office shall date stamp vertisement for the job opportunity in
the application (see § 656.30 for the sig- a newspaper of general circulation or
nificance of this date), and shall make in a professional, trade, or ethnic pub-
sure that the Application for Alien Em- lication, whichever is appropriate to
ployment Certification form is complete. the occupation and most likely to
If it is not complete the local office bring responses from able, willing,
shall return it to the employer and qualified, and available U.S. workers.
shall advise the employer to refile it The employer may request the local of-
when it is completed. fice’s assistance in drafting the text.
(e) The local office shall calculate, to The advertisement shall:
the extent of its expertise using wage (1) Direct applicants to report or send
information available to it, the pre- resumes, as appropriate for the occupa-
vailing wage for the job opportunity tion to the local office for referral to
pursuant to § 656.40 and shall put its the employer;
finding into writing. If the local office (2) Include a local office identifica-
finds that the rate of wages offered is tion number and the complete address
below the prevailing wage, it shall ad- or telephone number of the local office,
vise the employer in writing to in- but shall not identify the employer;
crease the amount offered. If the em- (3) Describe the job opportunity with
ployer refuses to do so, the local office particularity;
shall advise the employer that the re- (4) State the rate of pay, which shall
fusal is a ground for denial of the appli- not be below the prevailing wage for
cation by the Certifying Officer; and the occupation, as calculated pursuant
that if the denial becomes final, the ap- to § 656.40;
plication will have to be refiled at the (5) Offer prevailing working condi-
local office as a new application. tions;
(f) The local office, using the infor- (6) State the employer’s minimum
mation on job offer portion of the Ap- job requirements;
plication for Alien Employment Certifi- (7) Offer training if the job oppor-
cation form, shall prepare and process tunity is the type for which employers
an Employment Service job order: normally provide training;
(1) If the job offer is acceptable, the (8) Offer wages, terms, and conditions
local office, in cooperation with the of employment which are no less favor-
employer, then shall attempt to recruit able than those offered to the alien;
United States workers for the job op- and
portunity for a period of thirty days, (9) If published in a newspaper of gen-
by placing the job order into the reg- eral circulation, be published for at


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§ 656.21 20 CFR Ch. V (4–1–04 Edition)

least three consecutive days; or, if pub- (3) After reviewing and processing
lished in a professional, trade, or eth- the application pursuant to paragraph
nic publication, be published in the (i)(2) of this section, the local office
next published edition. (and the State Employment Service of-
(h) The employer shall supply the fice) shall process the application pur-
local office with required documenta- suant to paragraphs (j)(2) and (k) of
tion or requested information in a this section.
timely manner. If documentation or re- (4) The Certifying Officer shall re-
quested information is not received view the documentation submitted by
within 45 calendar days of the date of the employer and the comments of the
the request the local office shall return local office. The Certifying Officer
the Application for Alien Employment shall notify the employer and the local
Certification form, and any supporting (or State) Employment Service office
documents submitted by the employer of the Certifying Officer’s decision on
and/or the alien, to the employer to be the request to reduce partially or com-
filed as a new application. pletely the recruitment efforts re-
(i) The Certifying Officer may reduce quired of the employer.
the employer’s recruitment efforts re- (5) Unless the Certifying Officer de-
quired by §§ 656.21(f) and/or 656.21(g) of cides to reduce completely the recruit-
this part if the employer satisfactorily ment efforts required of the employer,
documents that the employer has ade- the Certifying Officer shall return the
quately tested the labor market with application to the local (or State) of-
no success at least at the prevailing
fice so that the employer might recruit
wage and working conditions; but no
workers to the extent required in the
such reduction may be granted for job
Certifying Officer’s decision, and in the
offers involving occupations listed on
manner required by §§ 656.20(g),
Schedule B.
656.21(f), 656.21(g), and 656.21 (j) of this
(1) To request a reduction of recruit-
part (i.e., by post-application internal
ment efforts pursuant to this para-
notice, employment service job order,
graph (i), the employer shall file a
and advertising; and a wait for results).
written request along with the Applica-
If the Certifying Officer decides to re-
tion for Alien Employment Certification
duce completely the recruitment ef-
form at the appropriate local Job Serv-
ice office. The request shall contain: forts required of the employer, the Cer-
(i) Documentary evidence (which tifying Officer then shall determine,
shall include, but is not limited to, a pursuant to § 656.24 whether to grant or
pre-application notice posted con- to deny the application.
sistent with § 656.20(g) of this part) that (6) Notwithstanding the provisions of
within the immediately preceding six paragraph (i)(1)(i) of this section, an
months the employer has made good employer may file a request with the
faith efforts to recruit U.S. workers for SESA to have any application filed on
the job opportunity, at least at the pre- or before August 3, 2001, processed as a
vailing wage and working conditions, reduction in recruitment request under
through sources normal to the occupa- this paragraph (i), provided that re-
tion; and cruitment efforts have not been com-
(ii) Any other information which the menced pursuant to paragraph
employer believes will support the con- 656.21(f)(1) of this section.
tention that further recruitment will (j) (1) The employer shall provide to
be unsuccessful. the local office a written report of the
(2) Upon receipt of a written request results of all the employer’s post-appli-
for a reduction in recruitment efforts cation recruitment efforts during the
pursuant to this paragraph (i), the 30-day recruitment period; except that
local office shall date stamp the re- for job opportunities advertised in pro-
quest and the application form and fessional and trade, or ethnic publica-
shall review and process the applica- tions, the written report shall be pro-
tion pursuant to this § 656.21, but with- vided no less than 30 calendar days from
out regard to §§ 656.21(f), 656.21(g), and the date of the publication of the em-
656.21(j)(1) of this part, advertisement, ployer’s advertisement. The report of
and job order; and the wait for results). recruitment results shall:


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Employment and Training Administration, Labor § 656.21a

(i) Identify each recruitment source (ii) A full description of the job offer
by name; for the alien employment.
(ii) State the number of U.S. workers (iii) If the application involves a job
responding to the employer’s recruit- offer as a college or university teacher,
ment; the employer shall submit documenta-
(iii) State the names, addresses, and tion to show clearly that the employer
provide resumes (if any) of the U.S. selected the alien for the job oppor-
workers interviewed for the job oppor- tunity pursuant to a competitive re-
tunity and job title of the person who cruitment and selection process,
interviewed each worker; and through which the alien was found to
(iv) Explain, with specificity, the be more qualified than any of the
lawful job-related reasons for not hir- United States workers who applied for
ing each U.S. worker interviewed. the job. For purposes of this paragraph
(2) If, after the required recruitment (a)(1)(iii), evidence of the ‘‘competitive
period, the recruitment is not success- recruitment and selection process’’
ful, the local office shall send the ap- shall include:
plication, its prevailing wage finding, (A) A statement, signed by an official
copies of all documents in the par- who has actual hiring authority, from
ticular application file, and any addi- the employer outlining in detail the
tional appropriate information (such as complete recruitment procedure under-
local labor market data), to the Em- taken; and which shall set forth:
ployment Service agency’s State office (1) The total number of applicants for
or, if authorized, to the regional Certi- the job opportunity;
fying Officer. (2) The specific lawful job-related
(k) A Employment Service agency’s reasons why the alien is more qualified
State office which receives an applica- than each U.S. worker who applied for
tion pursuant to paragraph (j)(2) of this the job; and
section may add appropriate data or (3) A final report of the faculty, stu-
comments, and shall transmit the ap- dent, and/or administrative body mak-
plication promptly to the appropriate ing the recommendation or selection of
Certifying Officer. the alien, at the completion of the
competitive recruitment and selection
(Approved by the Office of Management and process;
Budget under control number 1205–0015) (B) A copy of at least one advertise-
[45 FR 83933, Dec. 19, 1980, as amended at 46 ment for the job opportunity placed in
FR 3830, Jan. 16, 1981; 49 FR 18295, Apr. 30, a national professional journal, giving
1984; 56 FR 54928, Oct. 23, 1991; 66 FR 40590, the name and the date(s) of publica-
Aug. 3, 2001] tion; and which states the job title, du-
ties, and requirements;
§ 656.21a Applications for labor certifi- (C) Evidence of all other recruitment
cations for occupations designated sources utilized; and
for special handling.
(D) A written statement attesting to
(a) An employer shall apply for a the degree of the alien’s educational or
labor certification to employ an alien professional qualifications and aca-
as a college or university teacher or an demic achievements.
alien represented to be of exceptional (E) Applications for permanent alien
ability in the performing arts by filing, labor certification for job opportuni-
in duplicate, an Application for Alien ties as college and university teachers
Employment Certification form, and any shall be filed within 18 months after a
attachments required by this part, selection is made pursuant to a com-
with the local Employment Service of- petitive recruitment and selection
fice serving the area where the alien process.
proposes to be employed. (iv) If the application is for an alien
(1) The employer shall set forth the represented to have exceptional ability
following on the Application for Alien in the performing arts, the employer
Employment Certification form, as appro- shall document that the alien’s work
priate, or in attachments: experience during the past twelve
(i) A statement of the qualifications months did require, and the alien’s in-
of the alien, signed by the alien. tended work in the United States will


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