THE OH LAW FIRM

Immigration Lawyers

Labor Certification & 140 Databank
 

 The Oh Law Firm and its Lawyers are not responsible for reliance by the reader on this information as each individual situation may be unique and different. The readers are advised to seek legal counsel from a qualified immigration attorney. The information stated here is subject to change.
www.immigration-law.com
Listing of Data Posted in this page
 
* DOL RIR Conversion Regulation, PDF, Text Version
* BS+5 Year Exp=EB 2 INS Regulation
* DOL PERM Program Guidelines Federal Register
* Outline of Proposed DOL RIR Conversion Regulation
* Full Text of the Proposed RIR Conversion Regulation
* Frequently Asked Questions and Answers on Permanent Alien Labor Certification

*RIR Conversion Regulation (PDF)

* BS+5 Year Exp=EB 2 INS Regulation: click here.

* DOL PERM Program Guidelines Released 08/25/00 (Courtesy of AILA)

Summary:

Most of the cases will be processed electronically as this web site posted previously. However, those cases that are accepted as non-audit cases will be certified within 7-21 working days of the date of application!!!! WOW!!!! Audit cases are in two types: One is a case which the computer system reviews for certain criteria and automatically "flags" it. The second is a "random" selection case. These two types of audit cases will be given an opportunity to respond to their request for evidence to verify information, and depending upon the evidence submitted it could be either certied or denied or go through supervised labor certification process.

SESA is phased out other than prevailing wage determination as outlined at this web site. SESA will not be involved even in those cases that are required to go through supervised recruitment process.

DOL will go through rule-making process soon, seeking comment from the public and interested parties. The process will involve "proposed" regulation just as the proposed conversion regulation with 30-day comment period before they enact as a legally binding regulation. For the full text, please

 

Full Text:

[Federal Register: August 25, 2000 (Volume 65, Number 166)]
[Proposed Rules]
[Page 51777-51779]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25au00-17]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 656

RIN 1205-AB


Labor Certification Process for the Permanent Employment of
Aliens in the United States

AGENCY: Employment and Training Administration, Labor.

ACTION: Notice of guidelines.

-----------------------------------------------------------------------

SUMMARY: The Employment and Training Administration (ETA) is in the
process of reengineering the permanent alien labor certification
process. ETA's goals are to make fundamental changes and refinements
that will: Streamline the process; save resources; improve the
effectiveness of the program; and better serve the Department of
Labor's (Department's) customers. This document will set forth the
general principles which will guide the development of proposed
regulations to effectuate the redesign.

FOR FURTHER INFORMATION CONTACT: Dale M. Ziegler, Chief Division of
Foreign Labor Certifications, Office of Workforce Security, Employment
and Training Administration, Department of Labor, Room C-4318, 200
Constitution Avenue, NW., Washington, DC 20210. Telephone: (202) 693-
3010 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

A. Permanent Alien Labor Certification Process

Generally, an individual labor certification from the Department of
Labor (Department) is required for employers wishing to employ an alien
on a permanent basis in the U.S. Before the Department of State (DOS)
and the Immigration and Naturalization Service (INS) may issue visas
and admit certain immigrant aliens to work permanently in the U.S., the
Secretary of Labor must first certify to the Secretary of State and the
Attorney General that:
(a) There are not sufficient U.S. workers who are able, willing,
qualified and available at the time of the application for a visa and
admission into the U.S. and at the place where the alien is to perform
the work; and
(b) The employment of such aliens will not adversely affect the
wages and working conditions of similarly employed U.S. workers. 8
U.S.C. 1182(a)(5)(A).
In brief, the current process for obtaining a labor certification
requires employers to actively recruit U.S. workers in good faith for a
period of at least thirty days for the job openings for which aliens
are sought. The employer's job requirements must conform to the
regulatory standards (e.g., those truly necessary), and employers must
offer prevailing wages and working conditions for the occupation in the
area in which the job is located. Further, employers may not favor
aliens or tailor the job requirements to any particular alien's
qualifications.
During the thirty-day recruitment period, employers are required to
place a three-day help-wanted advertisement in a newspaper of general
circulation, or a one-day advertisement in a professional, trade, or
business journal, or in an appropriate ethnic publication. Employers
are also required to place a thirty-day job order with the local office
of the state employment service in the state in which the employer
seeks to employ the alien. Alternatively, if employers believe they
have already conducted adequate recruitment efforts seeking qualified
U.S. workers at prevailing wages and working conditions through sources
normal to the occupation and industry, they may request the Department
to waive the otherwise mandatory thirty-day recruitment efforts as
prescribed by the Department's regulations governing the program. This
waiver process is generally referred to as involving ``Reduction in
Recruitment'' (RIR) applications. If the employer does not request RIR
processing or if the request is denied, the help-wanted advertisements
which are placed in conjunction with the mandatory thirty-day
recruitment effort direct job applicants to either report in person to
the employment service office or to submit resumes to the employment
service.
Job applicants are either referred directly to the employer or
their resumes are sent to the employer. The employer then has forty-
five days to report to the employment service the lawful, job-related
reasons for not hiring any U.S. worker referred. If the employer hires
a U.S. worker for the job opening, the process stops at that point,
unless the employer has more than one opening, in which case the
application may continue to be processed. If, however, the employer
believes that able, willing and qualified U.S. workers are not
available to take the job, the application together with the
documentation of the recruitment results and prevailing wage
information are sent to one of ten regional offices of the Department.
There, it is reviewed and a determination is made as to whether or not
to issue the labor certification based upon the employer's compliance
with the Department's regulations governing the program. If the
Department determines that there are no able, willing, qualified and
available U.S. workers, and that the employment of the alien will not
adversely affect the wages and working conditions of similarly employed
U.S. workers, the Department so certifies to the INS and the DOS, by
issuing a permanent labor certification. See 30 CFR part 656; see also
section 212(a)(5)(A) of the Immigration and Nationality Act, as amended
(INA)

B. Problems With the Current System

The labor certification process described above has been criticized
as being complicated, costly and time consuming. Due to increases in
the volume of applications received and a lack of adequate resources,
it can take up to two years or more to complete the process for
applications that are filed under the basic process and do not utilize
the more streamlined RIR

[[Page 51778]]

process. The process also requires substantial state and federal
resources to administer and is reportedly costly and burdensome to
employers as well. Cuts in federal funding for both this immigration
program and for the Employment Service have made it difficult for state
and federal administrators to keep up with the process. ETA, therefore,
is taking steps to improve the effectiveness of the various regulatory
requirements and the application processing procedures, with a view to
achieving considerable savings in resources both for the government and
employers, without diminishing significant protections now afforded
U.S. workers by the current regulatory and administrative requirements.

C. Developing a Streamlined Process

The permanent foreign labor certification process for employment-
based immigration in the U.S. has been a two-tiered system involving
both State Employment Security Agencies (SESA) and the U.S. Department
of Labor for more than 30 years. By its very nature there is an element
of redundancy in case processing under this system. As previously
noted, the current system has been criticized for being costly,
burdensome, and inefficient. The redesigned process envisioned by the
Department will require employers to submit their applications directly
to ETA processing centers. The new process will take full advantage of
state-of-the-art technology and the use of policy-driven standards to
minimize manual intervention, and to increase the speed of case
processing at a reduced cost to employers and the government alike. It
is important to note that the description of the redesigned process in
this notice represents the Department's current thinking. This process
may be subject to modifications in response to comments received on
future rulemaking efforts.
The new process under consideration for processing permanent
applications will streamline the role of SESAs in the labor
certification process to include only the prevailing wage
determinations. Employers will no longer be required to conduct a 30-
day job recruitment through the Employment Service. In the current
system, prevailing wage determinations are made by SESAs as part of the
normal process of reviewing an application and informing the employer
of any deficiencies therein. In the new process, the employer will
still be required to obtain a prevailing wage determination from the
SESA. Although the timing of the prevailing wage determination request
will change from a post-filing action to a pre-filing action, this step
is vital in order for the Department to meet its responsibility to make
the statutorily required certification that the employment of the alien
will not have an adverse effect on the wages and working conditions of
similarly employed U.S. workers.
We envision that the new system for processing permanent alien
labor certification applications will be considerably streamlined but
will not materially diminish any of the protections now afforded U.S.
workers by the current regulatory and administrative requirements. The
employer will be required to contact the SESA to obtain the prevailing
wage determination for the occupation in the area of intended
employment. It is envisioned that this procedure will operate in much
the same manner as the one currently being utilized for processing
prevailing wage requests under the H-1B program for nonimmigrant
professionals in specialty occupations. See 20 CFR part 655, subpart H;
see also section 212(n) of the INA. As part of our efforts to take
advantage of technological innovations that will increase efficiencies
in the program, however, we are proposing that the form upon which such
a request is made will be standardized and will be machine-readable to
eliminate the need for data entry by the ETA processing centers when an
application is first received.
Upon receipt of a request for a prevailing wage determination under
the new system, the SESA will evaluate the particulars of the
employer's job offer, such as the job duties and requirements for the
position, and the geographic area in which the job is located. If the
job opportunity is unionized, the wage rate set forth in the collective
bargaining agreement that applies to the position shall be considered
to be the applicable prevailing wage. If the job opportunity is not
unionized, however, as is most often the case, then the SESA will
determine the occupational classification for the job using an
appropriate occupational classification taxonomy such as the
Department's O'Net occupational classification structure. The SESA will
also then determine the area of intended employment for the job
opportunity. As a result of this analysis, the SESA will normally
assign the prevailing wage rate and appropriate skill level for the job
opportunity from the wage component of the Occupational Employment
Statistics (OES) survey, unless a wage determination has been issued
pursuant to the Davis-Bacon Act, 40 U.S.C. 276a et seq. (DBA), or the
McNamara-O'Hara Service Contract Act, 41 U.S.C. 351 et seq. (SCA), in
which case that determination shall form the basis for the prevailing
wage for that job opportunity.
In the absence of a prevailing wage rate derived from the SCA, the
DBA, or an applicable wage rate from a collective bargaining agreement
covering the position, the employer also has the option of submitting
an alternative source of prevailing wage information such as a
published wage survey or other wage data obtained from a survey that
has been conducted or funded by the employer. If the employer chooses
to submit an alternative source of wage data, the SESA will evaluate
such other information (e.g., a published wage survey) and will
determine if it is in compliance with the Department's standards
governing the acceptability of employer-provided wage data such as the
validity of the statistical methodology employed. If the employer-
provided wage data is found to be acceptable, the specific wage rate
derived from that source that applies to the employer's job
opportunity, taking into consideration such factors as the appropriate
occupational classification, geographic area, and level of skill, will
be considered to be the prevailing wage rate for purposes of that
particular job opportunity. If the employer-provided wage data is not
accepted, the SESA will inform the employer of the reasons why the
survey is unacceptable. The Department is contemplating the
establishment of a process to review employer appeals of determinations
made by SESAs, such as a determination that an employer-provided wage
survey is unacceptable.
The SESA's response to the employer's request will be in writing on
the same standardized form through which the request was initially
made. The response will indicate the prevailing wage rate for the job
opportunity, the source of such information, and the appropriate
occupational classification and level of skill applied in the
determination to arrive at that rate.
The employer will also be required to conduct an adequate test of
the labor market for qualified U.S. applicants at prevailing wages and
working conditions through sources normal to the occupation and
industry during the 6-month period preceding the filing of the
application. We currently foresee that the recruitment efforts will
consist of both mandatory steps and alternative steps chosen by the
employer from a listing of additional recruitment steps that will be
specifically prescribed by

[[Page 51779]]

the regulations. We intend to outline the specific recruitment steps
required, including those that will be considered acceptable as
alternative steps. The required recruiting efforts will be similar to
the RIR process under the existing system in that all recruitment will
be conducted prior to the employer filing the application. This up-
front recruitment system will be required of all applicants under the
new system. Regardless of the steps chosen by the employer to fulfill
its obligation to conduct an adequate test of the labor market, the
employer will be required to maintain documentation of the recruitment
efforts it has undertaken and the results thereof, such as the lawful,
job-related reasons for not hiring U.S. applicants for the position.
After the recruitment period has ended and the employer has
assembled the requisite documentation in support of the application,
the employer then submits the application directly to an ETA processing
center. In developing the application form to be used in the new
system, as with the proposed prevailing wage request form, we intend to
take every advantage of technological innovations that will increase
efficiencies in the program. Therefore, it is expected that the labor
certification application will also be machine-readable or directly
completed in a web-based environment to eliminate the need for time-
consuming data entry by ETA processing centers. Applications will be
received by facsimile transmission, by mail, or via internet and will
be subject to an initial acceptability check to ensure that the
application can be processed. The purpose of this test is to ensure
that the form can be recognized by an automatic scanning/data selection
process. The acceptability test will consist of ensuring that a
completed application form has been received, including the prevailing
wage determination form issued by a SESA. Further, this initial test
will determine whether the application is readable or scannable
depending on the method of submission. For instance, if the application
is submitted by mail it will not be acceptable if it is too crumpled,
stained or damaged to be scanned into the system. The application will
also be unacceptable if it cannot be read by the computer system due to
transmission errors on facsimile transmissions or other reasons such as
illegible writing. As noted above, the Department is also contemplating
the future use of advanced technologies to allow applications to be
submitted and processed under a web-based system.
After an application has been determined to be acceptable for
filing, a computer system will review it based upon various selection
criteria or ``flags'' that will allow more problematic applications to
be identified for an in-depth review or audit. In addition, it is
anticipated that some applications will be randomly selected for an
audit without regard to the results of the computer analysis as a
quality control measure. If no request for an audit has been triggered
by the information provided on the application nor via random
selection, the application will be immediately certified and returned
to the employer, who may then submit the certified application to the
INS in support of an employment-based I-140 petition. It is anticipated
that if an application is not selected for an audit, an employer will
have a computer-generated certification decision within seven to
twenty-one working days of the date the application was initially
submitted.
If an application has been flagged for an audit, the employer will
be notified and required to submit in a timely manner documentation
verifying the information stated in or attested to on the application.
Upon timely receipt of an employer's audit documentation, the scanned
application would be electronically distributed to an ETA regional
office where a case analyst would conduct an audit, as determined by
the regional certifying officer.
After an audit has been completed, we currently envision three
potential actions the certifying officer can take on the application:
Certification; denial; or supervised recruitment. If the audit
documentation is complete and consistent with the employer's statements
and attestations contained in the application, the application will be
certified and returned to the employer. If the audit documentation is
not complete, is inconsistent with the employer's statements and/or
attestations contained in the application, or is otherwise deficient in
some material respect, the application will be denied and a
notification of denial with the reasons therefor will be issued to the
employer. We anticipate that if an application is denied by the
regional certifying officer, the employer will have an opportunity for
an administrative review of the decision. Lastly, on any application
selected for an audit regardless of the reason for such selection, the
regional certifying officer will have the authority to conduct
supervised recruitment for the employer's job opportunity in any case
where serious questions arise regarding the adequacy of the employer's
test of the labor market.
Where supervised recruitment is required by the regional certifying
officer, we expect that the procedure will operate much like the
current non-RIR regulatory recruitment scheme under the basic process,
except that the recruitment efforts would be directed by the regional
certifying officer and would not be directed by the SESA, as is the
case under the current system. See Sec. 656.24(g) for detailed
information concerning the recruitment efforts required under the
existing basic alien labor certification process. At the completion of
the supervised recruitment efforts, the employer will be required to
document that such efforts were unsuccessful, including the lawful,
job-related reasons for not hiring any U.S. workers who applied for the
position. After a review of the employer's documentation, the regional
certifying officer will either certify or deny the application. In all
instances in which an application is denied, the denial notification
will set forth the deficiencies upon which the denial is based.
Upon the implementation of the new system outlined in this document
and subject to public comment in future rulemaking, the Department
believes that a number of key criticisms of the current program, such
as its cost, timeliness, and complexity, will have been resolved or
mitigated to the extent practicable. The Department is continuing to
monitor operating procedures at all levels to determine whether further
efficiencies can be made that would improve the balance between meeting
employers' legitimate needs for foreign workers with our obligation to
both protect jobs for U.S. workers and protect against adverse effects
on the U.S. labor force.

Signed at Washington, DC, this 17th day of August, 2000.
Ray Bramucci,
Assistant Secretary for Employment and Training.
[FR Doc. 00-21733 Filed 8-24-00; 8:45 am]
BILLING CODE 4510-30-M

 

*Proposed DOL RIR Conversion Regulation

Summary:

The following are the key conditions, among others: For the full text, please read the next posting.

Caveat: This is a "proposed" regulation which does not have a legal force. For the definition of this regulation, please refer to our previous posting on this page. Please do not rely on this summary as the full text of the regulation will be posted later. This firm will not be responsible for consequences of such reliance. www.immigration-law.com

Full Text:

[Federal Register: July 26, 2000 (Volume 65, Number 144)]
[Proposed Rules]
[Page 46081-46084]
-----------------------------------------------------------------------
Part IV
Department of Labor
-----------------------------------------------------------------------
Employment and Training Administration
-----------------------------------------------------------------------
20 CFR Part 656
 
Labor Certification Process for the Permanent Employment of Aliens in
the United States; Refiling of Applications; Proposed Rule
[[Page 46082]]
 
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 656
RIN 1205-AB25

Labor Certification Process for the Permanent Employment of
Aliens in the United States; Refiling of Applications
AGENCY: Employment and Training Administration, Labor.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: The Employment and Training Administration (ETA) of the
Department of Labor (Department or DOL) proposes to amend its
regulations relating to the permanent employment of aliens in the
United States. The proposed amendments would permit employers to
request that any labor certification application for permanent
employment filed on or before July 26, 2000, and which has not been
sent to the regional certifying officer, be processed as a reduction in
recruitment request, provided recruitment has not been conducted
pursuant to the permanent labor certification regulations. ETA
anticipates that the proposed amendment would reduce the backlog of
labor certification applications for permanent employment in State
Employment Security Agencies (SESA). This measure to reduce backlogs
would result in a variety of desirable benefits, a reduction in
processing time for both new applications and those applications
currently in the queue, would facilitate the development and
implementation of a new, more efficient system for processing labor
certification applications for permanent employment in the United
States, and would reduce government resources necessary to process
applications for alien employment certification.
DATES: Interested persons are invited to submit written comments on the
proposed rule on or before August 25, 2000.
ADDRESSES: Submit written comments to the Assistant Secretary for
Employment and Training, U.S. Department of Labor, 200 Constitution
Avenue, NW., Room N-4456, Washington, DC 20210, Attention: James H.
Norris, Chief, Division of Foreign Labor Certifications.
FOR FURTHER INFORMATION CONTACT: Denis M. Gruskin, Senior Specialist,
Division of Foreign Labor Certifications, Employment and Training
Administration, 200 Constitution Avenue, NW., Room N-4456, Washington,
DC 20210. Telephone: (202) 219-5263 (this is not a toll-free number).
SUPPLEMENTARY INFORMATION:
A. Background
Backlogs of applications for permanent alien employment
certification have been a growing problem in ETA regional and SESA
offices. These increasing backlogs have resulted in an increase in the
time it takes to obtain a determination on an application for permanent
employment in the United States.
Recent measures to reduce backlogs in ETA's regional offices have
met with considerable success. Consequently, ETA is now turning its
attention to reducing the number of backlogged cases in SESA's.
Instituting measures to reduce backlogs in SESA's without first
reducing backlogs in regional offices would not have resulted in a
reduction in mean processing time. Implementing measures to reduce
backlogs in SESA's without first reducing backlogs in the regional
offices, would have merely resulted in transferring the backlogged
applications from the SESA's to ETA's regional offices.
B. Statutory Standard and Implementing Regulations
Before the Immigration and Naturalization Service (INS) may approve
petition requests and the Department of State may issue visas and admit
certain immigrant aliens to work permanently in the United States, the
Secretary of Labor must first certify to the Secretary of State and to
the Attorney General that:
(a) There are not sufficient United States workers, who are able,
willing, qualified, and available at the time of the application for a
visa and admission into the United States and at the place where the
alien is to perform the work; and
(b) The employment of the alien will not adversely affect the wages
and working conditions of similarly employed United States workers. [8
U.S.C. 1182(a)(5)(A)].
If the Secretary, through ETA, determines that there are no able,
willing, qualified, and available U.S. workers and that employment of
the alien will not adversely affect the wages and working conditions of
similarly employed U.S. workers, DOL so certifies to the INS and to the
Department of State, by issuing a permanent alien labor certification.
If DOL cannot make one or both of the above findings, the
application for permanent alien employment certification is denied. DOL
may be unable to make the two required findings for one or more
reasons, including, but not limited to:
(a) The employer has not adequately recruited U.S. workers for the
job offered to the alien, or has not followed the proper procedural
steps in 20 CFR part 656.
(b) The employer has not met its burden of proof under section 291
of the Immigration and Nationality Act (INA or Act.) (8 U.S.C. 1361),
that is, the employer has not submitted sufficient evidence of its
attempts to obtain available U.S. workers, and/or the employer has not
submitted sufficient evidence that the wages and working conditions
which the employer is offering will not adversely affect the wages and
working conditions of similarly employed U.S. workers.
C. Department of Labor Regulations
The Department of Labor has promulgated regulations, at 20 CFR part
656, governing the labor certification process described above for the
permanent employment of immigrant aliens in the United States. Part 656
was promulgated pursuant to section 212(a)(14) of the INA (now at
section 212(a)(5)(A)). 8 U.S.C. 1182(a)(5)(A).
The regulations at 20 CFR part 656 set forth the factfinding
process designed to develop information sufficient to support the
granting of a permanent labor certification. These regulations describe
the nationwide system of public employment service offices available to
assist employers in finding available U.S. workers and how the
factfinding process is utilized by DOL as the basis of information for
the certification determination. See also 20 CFR parts 651 through 658,
and the Wagner-Peyser Act (29 U.S.C. Chapter 4B).
Part 656 also sets forth the responsibilities of employers who
desire to employ immigrant aliens permanently in the United States.
Such employers are required to demonstrate that they have attempted to
recruit U.S. workers through advertising, through the Federal-State
Employment Service System, and by other specified means. The purpose is
to assure that there is an adequate test of the availability of U.S.
workers to perform the work, and to ensure that aliens are not employed
under conditions that would adversely affect the wages and working
conditions of similarly employed U.S. workers.
[[Page 46083]]
D. Backlogs
Since Fiscal Year (FY) 1995, backlogs of applications for permanent
alien employment certification in ETA regional offices and SESA's have
increased dramatically. Between October 1994 and October 1998, the
total backlog in both regional and SESA offices increased from 40,000
to 104,000 applications for alien employment certification. Regional
office backlogs alone increased from 10,000 to 30,000 cases over that
period, while backlogs in the SESA offices increased from 30,000 to
74,000 cases. The number of backlogged cases in SESA's on March 31,
1999, stood at about 86,000 applications.
Early in calendar year 1999 ETA instituted a number of measures to
reduce the backlog of applications for permanent alien employment
certification that numbered over 38,000 cases in its regional offices.
The most important of these measures put in place in February 1999,
were:
<bullet> Implementation of a system nationally which allowed
employers to transmit H-1B labor condition applications (LCA)
electronically and to receive a certification decision on their
applications by return fax. Implementation of this system allowed many
of the regional staff that it had been necessary to assign to
processing LCA's in order to ensure compliance with the statutory 7-day
H-1B processing requirement, to be reassigned to processing permanent
cases.
<bullet> Implementation of a special priority backlog reduction
effort by providing $500,000 for overtime and hiring temporary staff.
These additional funds allowed experienced analysts to concentrate on
processing permanent cases.
The efforts to reduce backlogs in regional offices met with
considerable success. As of late October 1999, the number of backlogged
cases in ETA regional offices numbered 14,642. To accomplish this large
reduction in backlogs, regional offices processed over 71,000 cases. In
addition to processing backlogged applications, the regions had to keep
abreast of the 47,800 new cases received from the SESA's between the
beginning of February and late October 1999.
E. Reduction in Recruitment (RIR) Requests
On October 1, 1996, because of the increasing workloads, ETA issued
General Administrative Letter No. 1-97, Measures for Increasing
Efficiency in the Permanent Labor Certification Process (GAL 1-97). The
GAL instituted a number of measures to increase efficiency which were
achievable under current regulations. One of the measures to increase
efficiency was to encourage employers to file requests for reduction in
recruitment under Sec. 656.21(i) of the permanent labor certification
regulations. Requests for reduction in recruitment are given expedited
processing at ETA's regional offices, if they contain no deficiencies.
The reduction in recruitment provision allows certifying officers to
reduce partially or completely the employer's recruitment efforts
through the State Employment Security Agencies, for example, by
decreasing partially or completely the number of days which the job
order and/or ad must be run. The notice requirement at
Sec. 656.20(g)(1)(i) and (5) can be reduced partially, but it cannot be
eliminated, since it is based on a statutory requirement. See
Immigration Act of 1990, Public Law 101-649, sec. 122(b) (Nov. 29
1990).
The reduction in recruitment provision may be utilized by
certifying officers when the labor market has been adequately tested
within 6 months prior to the filing of the application and there is no
expectation that full or partial compliance with the prescribed
recruitment measures will produce qualified and willing applicants.
The emphasis on the use of the reduction in recruitment regulation
by GAL 1-97 in appropriate cases has worked well and has contributed
significantly to ETA being able to manage its increasing case load with
limited staff resources. Backlogs in both the regional offices and
SESA's would undoubtedly be substantially larger if the use of the RIR
provisions in the regulations had not been encouraged by GAL 1-97.
ETA has concluded that backlogs in SESA's could be substantially
reduced if employers are allowed to have applications that were not
originally filed as RIR cases and which meet the appropriate criteria
removed from the SESA's processing queues and processed as reduction in
recruitment cases. Furthermore, reducing or eliminating the backlogs
would facilitate the development and implementation of a new permanent
employment certification system that ETA has been developing.
The proposed amendment to the RIR regulation at 20 CFR 656.21(i)
would allow an employer to file a request to have an application filed
on or before July 26, 2000, which has not been sent to the regional
office, processed as a RIR request under Sec. 656.21(i), provided that
recruitment has not been conducted pursuant to Secs. 656.21(f) and/or
(g). Since the RIR procedure is designed to expedite processing by
permitting employers to substitute recruiting conducted prior to filing
the application for the recruitment required by Sec. 656.21, it would
be incongruous to entertain an RIR request from an employer who had
already engaged in the mandated recruiting. Those applications should
be approved or denied based on that recruitment.
The proposed regulation provides that the option to have a
permanent labor certification application processed as an RIR request
would apply only to cases that were filed on or before July 26, 2000.
ETA's operating experience indicates that without such a limitation
employers may be motivated to file large numbers of cases, many of
which may be inadequately prepared, simply to obtain a filing date \1\
and then convert such cases to reduction in recruitment requests.
Providing sufficient lead time to employers that may file large numbers
of cases that could subsequently be converted to RIR cases would
undermine the purpose of the proposed rule which is to reduce backlogs
of existing cases and to facilitate the orderly implementation of a new
streamlined labor certification system.
---------------------------------------------------------------------------
\1\ The filing date is important to employers because, according
to INS regulations, ``[t]he priority date of any petition for
classification under section 203(b) of the Act which is accompanied
by an individual labor certification from the Department of Labor
shall be the date the request for certification was accepted for
processing by any office within the employment service system.'' See
8 CFR 204.5(d).
---------------------------------------------------------------------------
Before the issuance of GAL 1-97, cited above, on October 1, 1996,
the RIR provisions at Sec. 656.21(i) were not fully utilized for a
variety of reasons. The issuance of GAL 1-97 instituted a uniform
policy that RIR requests were to be viewed favorably, set forth
operating guidelines that were to be followed by all regional offices,
and clarified ETA policy regarding the priority to be given RIR
requests. Between the issuance of GAL 1-97 in October 1996, and the
publication of this document in the Federal Register employers have had
ample encouragement and opportunity to file RIR requests.
The proposed regulation also provides that for the request to have
a previously filed application processed as an RIR request it must be
accompanied by documentary evidence of good faith recruitment conducted
within the 6 months immediately preceding the date of the request. This
provision will allow expeditious processing of previously filed
applications as RIR requests upon receipt of the employer's request.
[[Page 46084]]
The proposed regulation does not specifically address the ability
of an employer to amend its application at the time the employer makes
a request to have a previously filed application processed as a RIR
request. The Department believes that the current administrative
practices that have been developed to handle requests to amend labor
certifications after filing are sufficient. Interested parties,
however, are invited to submit comments on this issue and the
Department will consider those and any other comments in the
development of the final rule.
Executive Order 12866
The Department has determined that this proposed rule is not an
``economically significant regulatory action'' within the meaning of
Executive Order 12866, in that it will not have an economic effect on
the economy of $100 million or more or adversely affect in a material
way the economy, a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local or
tribal governments or communities.
While it is not economically significant, the Office of Management
and Budget reviewed the proposed rule because of the novel legal and
policy issues raised by this rulemaking.
Regulatory Flexibility Act
The proposed rule would only affect those employers seeking
immigrant workers for permanent employment in the United States. The
Department of Labor has notified the Chief Counsel for Advocacy, Small
Business Administration, and made the certification pursuant to the
Regulatory Flexibility Act at 5 U.S.C. 605(b), that the proposed rule
will not have a significant economic impact on a substantial number of
small entities.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any 1 year, and it will not significantly or
uniquely affect small governments. Therefore, no actions are deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. It will not result
in an annual effect on the economy of $100 million or more; a major
increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
Executive Order 13132
This proposed rule will not have a substantial direct effect on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a summary impact
statement.
Assessment of Federal Regulations and Policies on Families
The proposed regulation does not affect family well-being.
Paperwork Reduction Act
The proposed rule would not modify the existing collection of
information requirements in 20 CFR 656.21.
Catalogue of Federal Domestic Assistance Number
This program is listed in the Catalogue of Federal Domestic
Assistance at Number 17.203, ``Certification for Immigrant Workers.''
List of Subjects in 20 CFR Part 656
Administrative practice and procedure, Aliens, Crewmembers,
Employment, Employment and training, Enforcement, Fraud, Guam,
Immigration, Labor, Longshore work, Unemployment, Wages and working
conditions.
Accordingly, Part 656 of Chapter V of Title 20 of the Code of
Federal Regulations is proposed to be amended as follows:
PART 656--LABOR CERTIFICATION PROCESS FOR PERMANENT EMPLOYMENT OF
ALIENS IN THE UNITED STATES
1. The authority citation for Part 656 is revised to read as
follows:
Authority: 8 U.S.C. 1182(a)(5)(A) and 1182(p); 29 U.S.C. 49 et
seq.; sec.122, Pub. L. 101-649, 109 Stat. 4978.
 
Sec. 656.21 [Amended]
2. Section 656.21 is amended by adding a new paragraph (i)(6), to
read as follows:
 
Sec. 656.21 Basic labor certification process.
* * * * *
(i) * * *
(6) Notwithstanding the provisions of paragraph (i)(1)(i) of this
section an employer may file a request with the SESA to have any
application filed on or before July 26, 2000, and which has not been
sent to the regional certifying officer, processed as a reduction in
recruitment request under this paragraph (i), provided that recruitment
has not been conducted pursuant to paragraph (f) and/or (g) of this
section.
Signed at Washington, DC, this 19th day of July, 2000.
Raymond L. Bramucci,
Assistant Secretary of Labor for Employment and Training.
[FR Doc. 00-18865 Filed 7-25-00; 8:45 am]
BILLING CODE 4510-30-P
 

*Most Frequently Asked Questions on Permanent Alien Labor Certifications

Q. What is the Procedure for Obtaining a Duplicate Copy of an Approved Labor Certification Application?