77326 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

DEPARTMENT OF LABOR

Employment and Training 

Administration 

20 CFR Parts 655 and 656 

RIN 1205–AA66 

Labor Certification for the Permanent 

Employment of Aliens in the United 

States; Implementation of New System

AGENCY: Employment and Training 

Administration, Labor.

ACTION: Final rule.

SUMMARY: The Department of Labor 

(DOL) is amending its regulations 

governing the filing and processing of 

labor certification applications for the 

permanent employment of aliens in the 

United States to implement a new 

system for filing and processing such 

applications. The new system requires 

employers to conduct recruitment 

before filing their applications. State 

Workforce Agencies (SWAs) will 

provide prevailing wage determinations 

to employers, but will no longer receive 

or process applications as they do under 

the current system. Employers will be 

required to place a job order with the 

SWA, but the job order will be 

processed the same as any other job 

order. Employers will have the option of 

filing applications electronically, using 

web-based forms and instructions, or by 

mail.

DATES: Effective Date: This final rule is 

effective on March 28, 2005, and applies 

to labor certification applications for the 

permanent employment of aliens filed 

on or after that date.

FOR FURTHER INFORMATION CONTACT:

PERM Help Desk, Division of Foreign 

Labor Certification, Employment and 

Training Administration, 200 

Constitution Avenue, NW., Room C–

4312, Washington, DC 20210. 

Telephone (202) 693–3010 (this is not a 

toll free number). Questions may be sent 

via e-mail to the following address ‘‘ 

PERM.DFLC@dol.gov. We encourage 

questions to be submitted by e-mail, 

because the Division of Foreign Labor 

Certification intends to post responses 

to frequently asked questions on its Web 

site (http://www.ows.doleta.gov/foreign/

) and e-mail submission of questions 

will facilitate thorough consideration 

and response to questions.

SUPPLEMENTARY INFORMATION

I. Introduction 

On May 6, 2002, the Department 

published in the Federal Register a 

Notice of Proposed Rulemaking (NPRM) 

to amend its regulations for the 

certification of permanent employment 

of immigrant labor in the United States. 

The NPRM also proposed amending the 

regulations governing employer wage 

obligations under the H–1B program. 67 

FR 30466 (May 6, 2002). Comments 

were invited through July 5, 2002. 

II. Statutory Standard 

Before the Department of Homeland 

Security (DHS) may approve petition 

requests and the Department of State 

(DOS) may issue visas and admit certain 

immigrant aliens to work permanently 

in the United States, the Secretary of 

Labor must certify to the Secretary of 

State and to the Secretary of Homeland 

Security: 

(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 of Labor, through the 

Employment and Training 

Administration (ETA), determines there 

are no able, willing, qualified, and 

available U.S. workers and employment 

of the alien will not adversely affect the 

wages and working conditions of 

similarly employed U.S. workers, DOL 

so certifies to the Department of 

Homeland Security and to the 

Department of State by issuing a 

permanent alien labor certification. 

If DOL can not make both of the above 

findings, the application for permanent 

alien employment certification is 

denied. 

III. Current Department of Labor 

Regulations 

DOL has promulgated regulations, at 

20 CFR part 656, governing the labor 

certification process for the permanent 

employment of immigrant aliens in the 

United States. Part 656 was promulgated 

under Section 212(a)(14) of the 

Immigration and Nationality Act (INA) 

(now at Section 212(a)(5)(A)). 8 U.S.C. 

1182(a)(5)(A). 

Part 656 sets forth the responsibilities 

of employers who desire to employ 

immigrant aliens permanently in the 

United States. Part 656 was recently 

amended through an Interim Final Rule 

effective on August 20, 2004, which 

added measures to address a backlog in 

permanent labor certification 

applications waiting processing. 69 FR 

43716 (July 21, 2004). When this final 

rule refers to the ‘‘current regulation,’’ it 

refers to the regulation in 20 CFR part 

656 as published in April 2004 and 

amended by 69 FR 43716.

The current process for obtaining a 

labor certification requires employers to 

file a permanent labor certification 

application with the SWA serving the 

area of intended employment and, after 

filing, to actively recruit U.S. workers in 

good faith for a period of at least 30 days 

for the job openings for which aliens are 

sought. 

Job applicants are either referred 

directly to the employer or their 

re ́sume ́s are sent to the employer. The 

employer has 45 days to report to either 

the SWA or an ETA backlog processing 

center or regional office the lawful jobrelated reasons for not hiring any 

referred qualified U.S. worker. 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 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, 

is sent to either an ETA backlog 

processing center or ETA regional office. 

There, it is reviewed and a 

determination made as to whether to 

issue the labor certification based upon 

the employer’s compliance with 

applicable labor laws and program 

regulations. If we determine there are no 

able, willing, qualified, and available 

U.S. workers, and the employment of 

the alien will not adversely affect the 

wages and working conditions of 

similarly employed U.S. workers, we so 

certify to the DHS and the DOS by 

issuing a permanent labor certification. 

See 20 CFR part 656 (April 2004) as 

amended by 69 FR 43716 (July 21, 

2004); see also section 212(a)(5)(A) of 

the INA, as amended. 

IV. Overview of the Regulation 

This final rule deletes the current 

language of 20 CFR part 656 and 

replaces the part in its entirety with new 

regulatory text, effective on March 28, 

2005. This new regulation will apply to 

all applications filed on or after the 

effective date of this final rule. 

Applications filed before this rule’s 

effective date will continue to be 

processed and governed by the current 

regulation, except to the extent an 

employer seeks to withdraw an existing 

application and refile it in accordance 

with the terms of this final rule. 

On December 8, 2004, the President 

signed into law the Consolidated 

Appropriations Act, 2005. This 

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77327

legislation amends Section 212(p) of the 

INA, 8 U.S.C. 1182(p), to provide that:

(3) The prevailing wage required to be paid 

pursuant to (a)(5)(A), (n)(1)(A)(i)(II) and 

(t)(1)(A)(i)(II) shall be 100 percent of the wage 

determined pursuant to those sections. 

(4) Where the Secretary of Labor uses, or 

makes available to employers, a 

governmental survey to determine prevailing 

wage, such survey shall provide at least 4 

levels of wages commensurate with 

experience, education, and the level of 

supervision. Where an existing government 

survey has only 2 levels, 2 intermediate 

levels may be created by dividing by 3 the 

difference between the two levels offered, 

adding the quotient thus obtained to the first 

level, and subtracting that quotient from the 

second level.

The 100 percent requirement is 

consistent with this final rule. The 

Department will be preparing guidance 

concerning the implementation of the 4 

levels of wages. 

The process for obtaining a permanent 

labor certification has been criticized as 

being complicated, time consuming, and 

requiring the expenditure of 

considerable resources by employers, 

State Workforce Agencies and the 

Federal government. The new system is 

designed to streamline processing and 

ensure the most expeditious processing 

of cases, using the resources available. 

The new system requires employers to 

conduct recruitment before filing their 

applications. Employers are required to 

place a job order and two Sunday 

newspaper advertisements. If the 

application is for a professional 

occupation, the employer must conduct 

three additional steps that the employer 

chooses from a list of alternative 

recruitment steps published in the 

regulation. The employer will not be 

required to submit any documentation 

with its application, but will be 

expected to maintain the supporting 

documentation specified in the 

regulations. The employer will be 

required to provide the supporting 

documentation in the event its 

application is selected for audit and as 

otherwise requested by a Certifying 

Officer.

This final rule also provides 

employers with the option to submit 

their forms either electronically or by 

mail directly to an ETA application 

processing center. A number of 

commenters indicated they wanted the 

option of filing electronically. Since 

January 14, 2002, employers have been 

allowed to submit Labor Condition 

Applications (LCAs) electronically 

under the nonimmigrant H–1B program, 

which has been very successful. 

Similarly, we expect electronic filing of 

applications for permanent alien 

employment certification to be 

successful and to be used by the 

overwhelming majority of employers 

filing applications. Employers will 

receive more prompt adjudication of 

their applications than would have been 

the case under a system that permitted 

only submission of applications by 

facsimile transmission or by mail. The 

new form—Application for Permanent 

Employment Certification (ETA Form 

9089)—has been designed to be 

completed in a web-based environment 

and submitted electronically or to be 

completed by hand and submitted by 

mail. 

The preamble to the proposed rule 

indicated that, initially, if a processing 

fee was not implemented, employers 

would be allowed to submit 

applications by facsimile transmission 

or by mail. DOL, however, has decided 

employers will not be permitted to 

submit applications by facsimile. Our 

experience with facsimile transmission 

under the H–1B program has been 

considerably less than optimal. It 

should also be noted employers do not 

have such an option under the current 

regulations for the permanent labor 

certification program. 

To accommodate electronic filing, a 

complete application will consist of one 

form. The new form, ETA Form 9089, 

will contain additional ‘‘blocks’’ to be 

marked by the employer to acknowledge 

that the submission is being made 

electronically and that information 

contained in the application is true and 

correct. We have developed a customerfriendly Web site (http://

www.workforcesecurity.doleta.gov/

foreign/) that can be accessed by 

employers to electronically fill out and 

submit the form. The Web site includes 

detailed instructions, prompts, and 

checks to help employers fill out the 

form. The Web site also provides an 

option to permit employers that 

frequently file permanent applications 

to set up secure files within the ETA 

electronic filing system containing 

information common to any permanent 

application they file. Under this option, 

each time an employer files an ETA 

Form 9089, the information common to 

all of its applications, e.g., employer 

name, address, etc., will be entered 

automatically, and the employer will 

have to enter only the data specific to 

the application at hand. 

Electronic submission and 

certification requires ETA Form 9089 be 

printed out and signed by the employer 

immediately after DOL provides the 

certification. A copy of the signed form 

must be maintained in the employer’s 

files, and the original signed form must 

be submitted to support the Immigrant 

Petition for Alien Worker (DHS Form I–

140). 

Because we do not yet have the 

technology to satisfy the statutes that 

deal with electronic signatures on 

Government applications—the 

Government Paperwork Elimination Act 

(44 U.S.C. 3504 n.) and/or the Electronic 

Records and Signatures in Global and 

National Commerce Act (E–SIGN) (15 

U.S.C. 7001—7006)—we are not 

implementing either of these statutes in 

this final rule. In the event such 

technology becomes available in the 

future, we will modify the electronic 

process for filing and certifying 

applications for permanent alien 

employment to comply with these 

statutes, and will provide appropriate 

notice(s) and instructions to employers. 

We view it as inadvisable to delay the 

electronic filing and certifications 

system while we develop this additional 

technology. When the statutes that deal 

with electronic signatures are 

implemented, all electronic filings will 

require such signatures. We are, 

however, implementing use of a PIN/

Password system in the interim. 

As indicated above, a complete 

application will consist of a single form: 

ETA Form 9089. The majority of the 

items on the application form consist of 

questions that require the employer to 

check Yes, No, or NA (not applicable) as 

a response. These questions and other 

information required by the application 

form elicit information similar to that 

required by the current labor 

certification process. For example, the 

wage offered on the application form 

must be equal to or greater than the 

prevailing wage determination provided 

by the SWA. The application form also 

requires the employer to describe the 

job and specific skills or other 

requirements. 

The employer will not be required to 

provide any supporting documentation 

with its application but must maintain 

and, when requested by the Certifying 

Officer, furnish documentation to 

support its answers, attestations and 

other information provided on the form. 

The standards used in adjudicating 

applications under the new system will 

be substantially the same as those used 

in arriving at a determination in the 

current system. The determination will 

still be based on: whether the employer 

has met the procedural requirements of 

the regulations; whether there are 

insufficient U.S. workers who are able, 

willing, qualified and available; and 

whether the employment of the alien 

will have an adverse effect on the wages 

and working conditions of U.S. workers 

similarly employed.

77328 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

Many commenters were concerned 

about the potential for fraud, 

misrepresentation, and non-meritorious 

applications in an attestation-based 

system. Some, but not all, of the 

measures we have taken to minimize 

these problems, include: a review of 

applications, upon receipt, to verify the 

existence of the employer and to verify 

the employer has employees on its 

payroll, and the use of auditing 

techniques that can be adjusted as 

necessary to maintain program integrity. 

The concerns about fraud and the 

measures we will implement to address 

such concerns are discussed below in 

greater detail. 

SWAs will no longer be the intake 

point for receipt of applications for 

permanent alien employment 

certification and will not be required to 

be the source of recruitment and referral 

of U.S. workers as they are in the 

current system. The required role of 

SWAs in the redesigned permanent 

labor certification process will be 

limited to providing prevailing wage 

determinations (PWD). Employers will 

be required to obtain a PWD from the 

SWA before filing their applications 

with DOL. The SWAs will, as they do 

under the current process, 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, to arrive at 

a PWD. 

The combination of pre-filing 

recruitment, providing employers with 

the option to complete applications in a 

web-based environment, automated 

processing of applications including 

those submitted by mail, and 

elimination of the SWA’s required role 

in the recruitment process will yield a 

large reduction in the average time 

needed to process labor certification 

applications. The redesigned system 

should also eliminate the need to 

institute special resource-intensive 

efforts to reduce backlogs, which have 

been a recurring problem. 

After ETA’s initial review of an 

application has determined that it is 

acceptable for processing, a computer 

system will review the application 

based upon various selection criteria 

that will allow problematic applications 

to be identified for audit. Additionally, 

as a quality control measure, some 

applications will be randomly selected 

for audit without regard to the results of 

the computer analysis. DOL has 

incorporated identifiers into the 

processing system, which are used to 

select cases for audit based upon 

program requirements. In some 

instances, DOL will be confirming 

specific information with employers. 

If an application has not been selected 

for audit, and satisfies all other reviews, 

the application will be certified and 

returned to the employer. The employer 

must immediately sign the application 

and then submit the certified 

application to DHS in support of an 

employment-based I–140 petition. We 

anticipate an electronically filed 

application not selected for audit will 

have a computer-generated decision 

within 45 to 60 days of the date the 

application was initially filed. 

If an application is selected for audit, 

the employer will be notified and 

required to submit, in a timely manner, 

documentation specified in the 

regulations to verify the information 

stated in or attested to on the 

application. Upon timely receipt of an 

employer’s audit documentation, it will 

be reviewed by ETA personnel. If the 

employer does not submit a timely 

response to the audit letter, the 

application will be denied. If the audit 

documentation is complete and 

consistent with the employer’s 

statements and attestations contained in 

the application, and not deficient in any 

material respect, the application will be 

certified the employer will be notified. 

If the audit documentation is 

incomplete, is inconsistent with the 

employer’s statements and/or 

attestations contained in the 

application, or if the application is 

otherwise deficient in some material 

respect, the application will be denied 

and a notification of denial with the 

reasons therefore will be issued to the 

employer. However, on any application, 

the CO will have the authority to 

request additional information before 

making a final determination. 

The CO may also order supervised 

recruitment for the employer’s job 

opportunity, such as where questions 

arise regarding the adequacy of the 

employer’s test of the labor market. The 

supervised recruitment that may be 

required is similar to the current 

regulations for recruitment under basic 

processing, which requires placement of 

advertisements in conjunction with a 

30-day job order by the employer. The 

recruitment, however, will be 

supervised by ETA COs instead of the 

SWAs. At the completion of the 

supervised recruitment effort, the 

employer will be required to document 

in a recruitment report the outcome of 

such effort, whether successful or not, 

and if unsuccessful, the lawful jobrelated reasons for not hiring any U.S. 

workers who applied for the position. 

Upon review of the employer’s 

documentation, the CO will either 

certify or deny the application. 

In all instances in which an 

application is denied, the notification 

will set forth the deficiencies upon 

which the denial is based. The employer 

will be able to seek administrativejudicial review of a denial by the Board 

of Alien Labor Certification Appeals 

(BALCA). 

Excepted Occupations in Team Sports 

The preamble to the NPRM made no 

mention of the special procedures used 

in processing applications on behalf of 

certain aliens to be employed in 

professional team sports. Those special 

procedures have been in place for over 

25 years and it was not our intent to 

modify those procedures as a result of 

this rulemaking. Employers filing 

applications on behalf of aliens to be 

employed in professional team sports 

will continue to use the existing special 

procedures and will continue to file 

their applications using the Application 

for Alien Employment Certification

(ETA 750). ETA intends to issue a 

directive detailing the procedures to be 

followed in filing applications on behalf 

of aliens to be employed in professional 

team sports. 

V. Discussion of Comments on Proposed 

Rule 

We received a total of 195 comments 

from attorneys, educational institutions, 

individuals, businesses and SWAs. Most 

of the commenters were critical of one 

or more of the changes, and suggested 

alternatives and improvements. Some 

commenters suggested abandonment of 

the proposed system entirely. 

A. Fraud, Program Abuse, and NonMeritorious Applications 

Many commenters expressed 

concerns about the potential for fraud, 

program abuse, and the filing of nonmeritorious applications in an 

attestation-based system. Some 

commenters suggested a two-tier system 

for processing applications to address 

an expected increase in fraudulent or 

non-meritorious applications.

1. Concerns About Fraud, Program 

Abuse, and Non-Meritorious 

Applications 

Numerous commenters believed the 

proposed system would be more 

susceptible to fraud and nonmeritorious applications than the 

current system. The Federation for 

American Immigration Reform (FAIR) 

was of the opinion the review process 

in the proposed rule would not meet the 

legal standard in INA section 

212(a)(5)(A). A couple of commenters 

emphasized the need to provide for 

meaningful enforcement. 

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77329

A SWA noted its application 

cancellation and withdrawal rate of 15 

percent, and stated the incidence of 

fraud and abuse of the current system 

suggests a need for tighter controls, 

rather than a process that relies on 

employer self-attestations. Another 

SWA expressed concern that many 

instances of fraud would not be 

apparent to the CO, who would be 

relatively unfamiliar with the situation 

in individual states. 

A DOL employee expressed concern 

about the increasing number of 

permanent applications not supported 

by an actual job location or position, or 

for which there is no bona fide 

employer signature. The commenter 

also believed the pre-filing recruitment 

would increase opportunities for 

employers to avoid hiring qualified U.S. 

workers. 

Several commenters expressed 

concern about the lack of hands-on 

review. These commenters included the 

American Council of International 

Personnel (ACIP), the American 

Federation of Labor and Congress of 

Industrial Organizations (AFL–CIO), 

FAIR, and various SWAs. ACIP believed 

the proposed rule’s audit and 

enforcement procedures would not act 

as effective deterrents to fraud and 

misrepresentation. The AFL–CIO 

considered a thorough manual review of 

labor certification applications to be, at 

times, the sole protection of American 

workers. One commenter suggested DOL 

impose penalties similar to those used 

in the H–1B program, such as civil 

money penalties and debarment from 

the labor certification program, for 

employers who file fraudulent 

applications. 

We believe commenters exaggerate 

the current system’s ability to identify 

fraud and underestimate the new 

system’s ability to deter it. We agree 

with the commenters that fraud is a 

serious problem. As a result of our 

program experience, we envision a 

review of applications, upon receipt, to 

check among other things, the bona 

fides of the employer. Additionally, we 

intend to aggressively pursue means by 

which to identify those applications that 

may be fraudulently filed. 

Our initial review will verify whether 

the employer-applicant is a bona fide 

business entity and has employees on 

its payroll. For example, the employer’s 

tax identification number could be 

crosschecked with available off-theshelf software used by credit-reporting 

agencies; we may also use off-the-shelf 

commercial products such as the 

American Business Directory or similar 

compendiums of employers in the U.S. 

We also intend to conduct checks to 

ensure the employer is aware that the 

application was filed on its behalf. 

Finally, we intend to explore means of 

coordination with the SWAs, which 

retain responsibility for making 

prevailing wage determinations, in 

order to avail ourselves of state 

expertise regarding the local employer 

community and the local labor market. 

Regarding the imposition of civil 

money penalties and other penalties, we 

are not imposing such penalties in this 

final rule. We have concluded that 

before making such fundamental 

changes in the program we should 

publish proposed penalties for notice 

and comment in another NPRM. 

We plan to minimize the impact of 

non-meritorious applications by 

adjusting the audit mechanism in the 

new system as needed. We have the 

authority under the regulations to 

increase the number of random audits or 

change the criteria for targeted audits. 

As we gain program experience, we will 

adjust the audit mechanism as necessary 

to maintain program integrity. We also 

note that under section 656.21(a) the CO 

has the authority to order supervised 

recruitment when he or she determines 

it to be appropriate. 

2. Proposals for a Two-Tier System 

Several commenters believed the 

automated processing under the new 

system would lead to a flood of nonmeritorious applications that would 

clog the system. ACIP, for example, 

worried a large increase in fraudulent 

applications could lead to long backlogs 

and possibly an oversubscription of visa 

numbers. To address the potential flood 

of non-meritorious applications, ACIP, 

the American Immigration Lawyers 

Association (AILA), and others 

proposed a two-track system for 

processing applications. Many 

proponents of a two-track system 

observed by devoting fewer resources to 

readily approvable applications, DOL 

could devote more resources to more 

problematic cases. 

The proposals for a two-track system 

varied, but all envisioned a category of 

employers or jobs that would qualify for 

special treatment. Three universities 

proposed creating a class of ‘‘registered’’

or ‘‘established’’ users, whose 

applications would be exempt from 

random audit but who would have to 

file annual reports with DOL. Two of 

these commenters explained how 

established users could be identified: 

Employers could submit an application 

form to DOL, which could review the 

employers’ history of labor certification 

filings. The two commenters pointed to 

the blanket L program, run by DHS, and 

the J–1 program, run by the Department 

of State, as examples of how such a 

program could work. A third university 

suggested alternatives to the random 

audit of what it referred to as the 

‘‘automated electronic labor certification 

request method.’’ One alternative was to 

implement an Established Users 

Program whereby university, non-profit 

research, and government institutions 

could be trained and certified in the 

submission of electronic labor 

certification requests. Another 

alternative was to require these 

institutions to submit an annual report 

to DOL based on pre-determined 

specifications. 

ACIP also referenced the blanket L 

and J visas and proposed that 

attestation-based filing be reserved for 

two categories of applications that 

would qualify for a ‘‘pre-certification 

track.’’ One category would focus on the 

employer and the employer’s track 

record with DOL; this would include 

employers who showed they were goodfaith users of the system by meeting 

certain specified criteria. The other 

category would focus on the nature of 

the occupation and shortages in the 

economy; this would include 

occupations listed on an updated 

Schedule A. Applications in either of 

these two categories would have no 

specific recruitment requirements. All 

other applications would be processed 

on a ‘‘standard’’ track; these 

applications would have requirements 

similar to, but less than, the current 

requirements for Reduction in 

Recruitment (RIR) processing.

Two high-tech companies supported 

ACIP’s call for a pre-certification 

procedure for established users. One 

also recommended only publicly traded 

companies be allowed to use an 

attestation-based system because these 

companies would be far less likely to 

file fraudulent applications. 

Another commenter favored a two-tier 

system that categorized applications 

based on their job requirements. Tier 1 

would be reserved for applications that 

contained no special skills, no 

experience exceeding the specific 

vocational preparation (SVP) level for 

the position, etc. Tier 1 applications 

would be filed according to the 

procedures outlined in the proposed 

rule. All other applications would fall 

into Tier 2, and would be filed 

according to the procedures for basic 

processing under current regulations. 

AILA recommended integrating an 

RIR option into the new system, to 

accommodate employers that conduct 

ongoing recruitment for multiple 

openings, and that might fail to satisfy 

the recruitment requirements outlined 

in the proposed rule. To do this, DOL 

77330 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

would need to set standards in three 

areas: RIR eligibility, recruitment 

requirements, and reporting recruitment 

results. AILA suggested recruitment be 

required over only a 2 or 3 month 

period. 

AILA also proposed expanding 

Schedule A to include a special group 

for labor shortages by geographic area, 

to respond to acute labor shortages in a 

timely manner. AILA was of the opinion 

that substantial data on job openings in 

particular labor market areas could be 

extracted from the attestation-based 

applications, and this data could be 

used to determine when and where 

labor shortages occur or disappear. 

The single-track, attestation-based 

system outlined in the proposed rule 

was designed to ensure the most 

expeditious processing of cases, using 

the resources available. We do not 

believe a two-track system would result 

in significant, if any, savings of time and 

resources. Proponents of a two-track 

system provide no statistical evidence of 

potential savings gained by establishing 

a pre-certification track. Any savings 

may be offset by the costs of establishing 

and administering a two-track system. 

They may also be offset by an increase 

in the amount of resources needed to 

process the ‘‘second’’ track of cases. 

Most of the proposals for a two-track 

system envision fewer, if any, 

recruitment requirements for one 

category of employers or applications. 

Under ACIP’s proposal, all applications 

would have fewer recruitment 

requirements than they would have 

under the proposed regulations. Were 

we to adopt any one of these proposals, 

the Secretary of Labor would be unable 

to carry out the statutory obligation to 

certify that no U.S. qualified workers are 

available. For example, under an 

established users program, employers 

could qualify on the basis of their 

history of filings. However, an 

employer’s past practice has no bearing 

on whether qualified U.S. workers are 

available for the current job opening. 

Additionally, economic conditions may 

change radically over time, which 

would justify a different approach to 

assess whether qualified U.S. workers 

were available. Further, because the 

proposed system is new and contains 

new recruitment requirements, at least 

for the first few years there would be no 

appropriate past practice to review. 

Comparisons to the L and J programs are 

also inappropriate. Both of these 

programs involve temporary visas, and 

neither depends upon the unavailability 

of U.S. workers. 

Finally, all of the suggestions for a 

two-track system do more than modify 

the proposed rule; they envision a 

different approach to case processing 

than the approach outlined in the 

proposed rule. Some of the proposals for 

a two-track system and Established 

Users program are fairly detailed; others 

are less clear. None of the proposals 

could be adopted as described in the 

comments. We do not believe the 

arguments made in favor of a two-track 

system are sufficiently compelling to 

justify formulating a new proposed rule. 

Some of the proposals for a two-track 

system envision aggressive management 

of Schedule A, to reflect more current 

shortages in the labor market. We 

believe it would be inappropriate to 

make changes to Schedule A in this 

final rule. However, it may be 

productive to consider whether we 

could create a more flexible Schedule A

in the future. See our discussion of 

Schedule A in Section D below. 

B. Role of the State Workforce Agencies 

Under the proposed system, SWAs 

will no longer receive or review 

applications. They will, however, 

continue to provide PWDs. 

1. Loss of State Workforce Agency 

Expertise 

Many commenters expressed 

concerns about the loss of SWA 

expertise on local labor markets as a 

result of centralized processing. 

A few commenters felt the revised 

process would not be more efficient 

because the additional workload 

associated with cases pulled for audit 

would exceed the resources available to 

the COs and would result in backlogs. 

Another commenter felt the shift in 

workload from the SWAs to the COs 

would place unnecessary burdens on 

COs who may not have extensive 

knowledge of local labor markets or 

experience in navigating the various 

state employment service systems. 

Another commenter contended the 

proposed rule failed to consider that 

many employers, unfamiliar with the 

labor certification process and without 

the assistance of attorneys or 

representatives, routinely file incorrect 

or incomplete applications. This 

commenter envisioned that without the 

benefit of the SWA’s expertise, the 

increase in correspondence between 

employers and regional offices would 

lead to backlogs similar to those under 

the current system. 

FAIR recommended the following 

revisions: 

• Give COs discretion to forward any 

labor certification application selected 

for audit to a SWA for confirmation; 

• Authorize SWAs, based on a 

‘‘reasonable-basis’’ complaint from the 

public or on their own information and 

belief, to require an audit of any 

application within the SWA’s 

jurisdiction; and 

• Require notices posted pursuant to 

20 CFR 656.10(d) to include the name, 

address, and contact information for the 

local SWA where a complaint may be 

filed. 

The AFL–CIO viewed limiting the 

role of the SWA to providing PWDs as 

a severe deficiency of the new system 

that would lead to increased fraud and 

abuse.

Because of resource constraints, 

among other things, state processing 

adds considerable time to the processing 

of applications in the current system. 

We believe we can retain the benefits of 

state labor market expertise without 

having state staff processing 

applications and thereby save 

significant processing time and expense. 

We view centralized application 

processing as a customer-friendly 

change that will simplify the labor 

certification application process, 

remove duplicative efforts that occur at 

the state and Federal levels, and result 

in greater consistency in the 

adjudication of cases. 

We believe the COs possess sufficient 

knowledge of local job markets, 

recruitment sources, and advertising 

media to administer the program 

appropriately. We have acquired much 

expertise during our administration of 

the current system and expect to 

maintain this expertise under the new 

system. Currently, we assess the 

adequacy of the recruitment before 

making a final determination in each 

case. We will be making similar 

judgments under the new system in the 

course of making determinations on the 

labor certifications, auditing 

applications and in overseeing any 

supervised recruitment. 

Guam requested it be allowed to 

continue its current role in processing 

labor certifications. We do not believe 

Guam’s circumstances are so unique 

that it must have a role in processing the 

applications to protect the wages and 

working conditions of U.S. workers. Its 

role under the current permanent labor 

certification regulations is no different 

than of the other states and territories 

that have a role in the current 

permanent labor certification program. 

2. Job Bank Orders 

One commenter inquired how DOL 

intends to verify job order referrals with 

SWA staff, screen re ́sume ́s received 

while conducting supervised 

recruitment, verify layoffs have not 

occurred in the last 6 months in the area 

of intended employment, verify the 

employer is a bona fide employer with 

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77331

an active Federal Employer 

Identification Number (FEIN), and 

answer employer questions and provide 

technical assistance. The commenter 

recommended the continued 

involvement of SWAs in conducting 

supervised recruitment for employers in 

their states. 

Another commenter was concerned 

the proposed rule does not specifically 

authorize states to reject illegal 

specifications in job orders or make it 

clear the SWA has this authority. 

Therefore, this commenter 

recommended DOL add a provision to 

reinstate the ban against illegal job 

duties and requirements, and to make it 

clear that employers who refuse to 

delete illegal duties or requirements will 

not be allowed to submit their 

application. 

Still another commenter noted under 

the proposed rule all jobs must be listed 

in a Job Bank, which will result in an 

increased burden on the SWAs. The 

commenter suggested if user fees are not 

required, the Federal government 

should cover this additional cost as part 

of the alien labor certification process. 

The commenter also recommended: (1) 

Using the SWA’s re ́sume ́ unit staff to 

process these Job Bank orders after the 

current backlog decreases, and (2) 

tracking labor certification applications 

to monitor employers’ recruiting efforts. 

Under the new regulation, job orders 

submitted under § 656.17(e) will be 

indistinguishable from any other job 

orders placed by employers. Referrals 

will be handled the same way they are 

handled for other job orders, which may 

vary from state to state. Under 

supervised recruitment, applicants will 

be directed to respond to the CO. Issues 

regarding layoffs are addressed in the 

preamble discussion of § 656.17(k). 

The general instructions in this final 

rule, at 20 CFR 656.10(c) provide the 

employer must certify the conditions of 

employment listed on the Application 

for Permanent Employment Certification

(Form ETA 9089). These attestations 

include certifying the job opportunity 

does not involve unlawful 

discrimination and the terms, 

conditions, and occupational 

environment are not contrary to Federal, 

state, or local law. Furthermore, 

although not specified in this final rule, 

the SWA can not accept job orders that 

are not acceptable under the 

Employment Service Regulations in 20 

CFR parts 651 through 658. 

We have not determined whether any 

additional funds will be provided for 

any increased expenses resulting from 

employers submitting job orders under 

the recruitment provisions at 20 CFR 

656.17(e) of this final rule. It should be 

noted, however, all such activities are 

within the scope of the Wagner-Peyser 

Act, that processing job orders required 

under this final rule are covered by 

existing Wagner-Peyser grants, and we 

are not required to provide additional 

funds to the SWAs. 

C. Definitions, for Purposes of This Part, 

of Terms Used in This Part 

The proposed rule made several 

changes in § 656.3 to the definitions of 

the terms used in part 656. 

1. Definition of the Area of Intended 

Employment

The proposed rule defines an ‘‘area of 

intended employment’’ as the area 

within normal commuting distance of 

the place (address) of intended 

employment. There is no rigid measure 

of distance that constitutes a normal 

commuting distance or normal 

commuting area because there may be 

widely varying factual circumstances 

among different areas. If the place of 

intended employment is within a 

Metropolitan Statistical Area (MSA) or 

Primary Metropolitan Statistical Area 

(PMSA), any place within the MSA or 

PMSA is deemed to be within normal 

commuting distance of the place of 

intended employment; however, all 

locations within a Consolidated 

Metropolitan Statistical Area (CMSA) 

will not be deemed automatically to be 

within normal commuting distance. The 

borders of MSAs and PMSAs are not 

controlling in identifying the normal 

commuting area; a location outside of an 

MSA or PMSA (or a CMSA) may be 

within normal commuting distance of a 

location that is inside the MSA or 

PMSA (or CMSA). We acknowledge that 

the terminology CMSAs and PMSAs are 

being replaced by the Office of 

Management and Budget (OMB). 

However, we will continue to recognize 

use of these area concepts as well as 

their replacements. 

One commenter touched on the 

definition of area of intended 

employment in its discussion of 

alternate published surveys used to 

document the prevailing wage (see our 

discussion of prevailing wages below). 

The commenter noted that some surveys 

list data for only the CMSA or for a 

region of a state. While recognizing 

these surveys may include employers 

from outside the normal commuting 

distance, the commenter felt it was 

highly unlikely that prevailing wage 

rates are that sensitive to commuting 

distance. 

We reject the proposal to allow data 

from broader geographical areas because 

our program experience indicates that 

wage rates vary with commuting 

distance. 

2. Definition of the Employer and 

Employment 

The definition of employer in the 

proposed rule reflected longstanding 

DOL policy, and has been modified to 

ensure that persons who are temporarily 

in the United States can not be 

employers for the purpose of obtaining 

a labor certification. In addition, the 

definition of employment has been 

modified to specify that job duties 

performed totally outside the United 

States can not be the subject of a 

permanent application for alien 

employment certification. 

Some commenters touched on the 

definition of ‘‘employer.’’ A DOL 

employee proposed amendments to the 

definition of employer to address 

situations in which all workers at the 

place of employment are independent 

contractors and the creation of an 

employee position is contingent on the 

granting of a labor certification. The 

commenter was concerned the term 

‘‘worker’’ in subparagraph (1) could be 

construed to include independent 

contractors, and wanted to amend the 

regulation to make it unambiguous that 

the job opening must be for an employee 

position, not an independent contractor 

position. Specifically, the commenter 

proposed to either amend the regulation 

to add the phrase ‘‘that has an 

employer-employee relationship with 

its workers’’ or change ‘‘a full-time 

worker’’ to ‘‘a full-time employee’’ or 

change the definition of ‘‘job 

opportunity’’ to read ‘‘a job opening for 

an employee’’ instead of ‘‘a job opening 

for employment.’’

In this final rule, the definition of 

employer has been clarified by 

removing from the first sentence the 

phrase ‘‘full-time worker’’ and adding 

the phrase ‘‘full-time employee’’ in lieu 

thereof. Further, a sentence has been 

added to the definition to underline that 

a certification can not be granted for an 

Application for Permanent Employment 

Certification filed on behalf of an 

independent contractor. 

A SWA recommended including 

holders of temporary visa types (i.e., B—

visitor’s visa) on the list of persons who 

are temporarily in the United States 

and, therefore, are not included in the 

definition of employers for the purpose 

of obtaining a labor certification. 

We agree that the list should include 

persons on a B visa. Therefore, this final 

rule adds visitors for business or 

pleasure to the list of persons who are 

temporarily in the United States and 

who can not be employers for the 

77332 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

purpose of obtaining a labor 

certification. 

3. References to the Immigration and 

Naturalization Service 

This final rule reflects the creation of 

the Department of Homeland Security 

and the attendant government 

reorganization. All references in the 

proposed rule to the Immigration and 

Naturalization Service (INS), in the 

Department of Justice, have been 

changed to either Department of 

Homeland Security (DHS) or the United 

States Citizenship and Immigration 

Services (USCIS), in the Department of 

Homeland Security. 

4. Definition of the Standard Vocational 

Preparation and Educational 

Equivalents 

The proposed rule defined the term 

‘‘Standard Vocational Preparation 

(SVP)’’ as the amount of lapsed time 

required by a typical worker to learn the 

techniques, acquire the information, and 

develop the facility needed for average 

performance in a specific job-worker 

situation. Lapsed time is not the same 

as work time; for example, 3 months of 

lapsed time refers to 3 calendar months, 

not 90 work days. The definition 

includes a list of SVP levels and the 

corresponding amount of lapsed time 

for each.

A university commenter noted the 

SVP level is for the most part unknown 

to most employers, and thanked DOL for 

including the information in the 

regulations. However, the commenter 

felt the regulations should also include 

the table of educational equivalencies 

used to determine how many years of 

experience a given degree or course of 

study is worth. The commenter noted 

the employer’s job requirements can not 

exceed the SVP level assigned to the job, 

and complained the SVP values do not 

adequately reflect the actual amount of 

experience and education required for 

specific positions. Citing full professors 

as an example, the commenter noted the 

assigned SVP level is 8, which means 

the employer may require between 4 to 

10 years of combined education and 

experience; however, universities rarely 

hire anyone who has a Ph.D. (equivalent 

to 7 years of experience) and only 3 

years of experience. A second 

commenter simply asked that this final 

rule clarify the O*NET job zones that 

are referenced in the preamble to the 

proposed rule at 67 FR at 30472. 

With respect to the commenter’s 

concern that the proposed rule does not 

allow an employer to use job 

requirements that exceed the SVP level 

assigned to the occupation, this final 

rule reinstates a business necessity test 

for job requirements that exceed the 

SVP level assigned to the occupation. 

See our discussion of business necessity 

below. Revision of the SVP is beyond 

the scope of this rulemaking. 

ETA plans to utilize the guidance 

provided in the administrative directive 

Field Memorandum No. 48–94, issued 

May 16, 1994, Subject: Policy Guidance 

on Labor Certification Issues (FM). In 

summary, the FM provided that a 

general associate’s degree is equivalent 

to 0 years SVP, a specific associate’s 

degree is equivalent to 2 years; a 

bachelor’s degree is equivalent to 2 

years; a master’s degree is equivalent to 

4 (2 + 2) years; and, a doctorate is 7 (2 

+ 2 + 3) years. 

In administering this final rule, the 

Dictionary of Occupational Titles (DOT) 

will no longer be consulted to determine 

whether the training and experience 

requirements are normal; O*NET will be 

used instead. It should be noted, 

however, the job opportunity’s job 

requirements, unless adequately arising 

from business necessity, must be those 

normally required for the occupation 

and must not exceed the Specific 

Vocational Preparation assigned to the 

occupation as shown in the O*Net Job 

Zones. More information about O*NET, 

including the O*NET job zones can be 

found at http://online.onetcenter.org/.

5. Definition of the State Employment 

Security Administration 

One commenter noted the acronyms 

‘‘SESA’’ and ‘‘SWA’’ are used 

interchangeably in some parts of the 

proposed rule; for example, 

§ 655.731(a)(2)(ii)(A)(3) uses SESA. The 

commenter recommended to avoid 

confusion, the definition of ‘‘State 

Employment Security Agency’’ be 

modified to include the phrase ‘‘now 

known as State Workforce Agency’’

before the acronym SWA. As if to 

underscore the confusion, a second 

commenter thought the use of SWA in 

the definition was a typographical error. 

We are amending only one section in 

part 655 subpart H of the Code of 

Federal Regulations. We use SESA in 

§ 655.731 to be consistent with part 655 

subpart H (dealing with H–1B and H–

1B1 applications), which references the 

SESA. However, in Part 656, we use 

SWA throughout. We have modified the 

heading of the definition in § 656.3 to 

read ‘‘State Workforce Agency (SWA), 

formerly known as the State 

Employment Security Agency (SESA).’’

D. Electronic Filing of Applications 

In the Notice of Proposed Rulemaking 

(NPRM), we proposed that the employer 

would submit two forms to an ETA 

application processing center. These 

forms were designed to be machine 

readable and we anticipated most 

employers would submit them by 

facsimile transmission to an ETA 

application processing center. 

1. Electronic Filing 

Many commenters indicated the 

forms published with the NPRM were 

not ‘‘user friendly’’ because they were 

designed to be machine readable to 

facilitate submission by facsimile 

transmission. Many commenters 

indicated because of problems during 

the implementation of the LCA ‘‘Faxback’’ system for H–1B applications, we 

should not require submission of the 

form by facsimile transmission. In view 

of the success of electronic filing of H–

1B applications, commenters 

recommended we use a system based on 

electronic filing in the redesigned 

permanent labor certification process. 

We have decided to implement the 

redesigned labor certification process 

using an electronic filing and 

certification system. This system is 

partially modeled after the system used 

for filing and certifying labor condition 

applications under the H–1B 

nonimmigrant program. Employers will 

also have the option to submit 

applications by mail.

Under the e-filing option, the 

Application for Permanent Employment 

Certification (ETA Form 9089) must be 

completed by the user on-line. The 

system will assist the employer by 

checking for obvious errors, and will 

input the information into an ETA 

database. This will speed the process of 

evaluating the application, and help to 

prevent data entry errors. ETA will 

accept mailed ‘‘hard copy’’ applications 

from those who either have no access to 

the internet or simply choose to submit 

a form completed by hand. Submission 

of applications by facsimile 

transmission will not be accepted, 

because our experience indicates 

facsimile submissions can not be relied 

on for consistent, error-free receipt and 

return of applications. We have 

determined that average processing time 

will be considerably shortened if we 

limit submission of applications to 

electronic filing or by mail. 

Applications submitted by mail will not 

be processed as timely as those filed 

electronically. 

The comments pertaining to user 

friendliness were considered in 

designing the electronic filing system 

and consolidating the Application for 

Permanent Employment Certification

and Prevailing Wage Determination 

Request (PWDR) form proposed in the 

NPRM into a single application form 

(see discussion below). We believe the 

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77333

consolidated form addresses virtually 

all of the issues regarding the lack of 

‘‘user friendliness’’ of the proposed 

forms. For example, as suggested by 

commenters, the items formerly on the 

PWDR, such as the job description and 

requirements and prevailing wage 

determination, are now on the 

application form. 

Employers will, as discussed below in 

the section on prevailing wages, request 

a PWD using the form required by the 

state in which the job is being offered. 

Information from the state’s prevailing 

wage determination request form, such 

as the prevailing wage, occupational 

code, occupational title, state 

determination number, and the date the 

determination was made, will be 

included on the application form. The 

employer will be expected to retain the 

state prevailing wage determination 

form to furnish to the CO if requested 

to do so in the event of an audit or 

otherwise. 

2. Elimination of the Prevailing Wage 

Determination Request Form (ETA 

9088) 

Under the current permanent labor 

certification program, requests for PWD 

are made to the SWAs on the various 

forms the SWAs have developed for 

employers to use in submitting such 

requests. The NPRM sought to 

standardize the process whereby 

employers make requests to the SWAs 

for PWD by proposing all requests be 

submitted on the PWDR. However, after 

reviewing our experience under the H–

1B program with the FAX-based filing 

system and the comments received on 

this issue we have decided to 

implement electronic filing by the use of 

a consolidated form. The consolidated 

form includes most of the items 

proposed for the Application for 

Permanent Employment Certification

and the information that would have 

been provided by the PWDR. This 

includes the information that the 

employer would have provided on the 

PWDR, such as the job description and 

job requirements, as well as the 

information that the SWAs would have 

entered on the PWDR, such as the 

prevailing wage determination and the 

SWA tracking number. 

Another reason why we have chosen 

not to require one standardized form be 

used by employers to submit requests 

for prevailing wage determinations to 

the SWAs is because such a requirement 

would, in effect, impose an unfunded 

mandate on the SWAs to develop 

computer systems to support the 

proposed PWDR. It also became evident 

that, assuming funding were available to 

develop the computer systems necessary 

to support the PWDR, several years 

would elapse before such systems 

would be operational in all of the 

SWAs. 

Accordingly, employers will continue 

the practice of requesting PWD from the 

SWAs on the various forms developed 

for this purpose by the SWA. 

3. Multiple Beneficiaries 

One commenter suggested DOL allow 

a single application to be used to 

support multiple vacancies/

beneficiaries. Multiple beneficiary 

applications are discussed under the 

basic process below. 

4. Assistance in Completing the 

Application Form 

Several commenters suggested DOL 

provide assistance in completing the 

application form. Among the 

suggestions were the creation of a tollfree number, an instruction handbook, 

and detailed instructions on the 

internet. We hope to make all of these 

methods available, although some may 

not be available upon initial 

implementation of the new system. 

5. Recommended Changes to the 

Application Form 

Commenters provided many specific 

suggestions for both the application 

form and the instructions. Those 

suggestions have been reviewed and 

many have been incorporated into the 

revised ETA Form 9089 and 

instructions, which have been 

submitted to the OMB for approval and 

follow the final rule. The changes most 

often requested and our responses are 

provided below.

• Include on the first page a box for 

the employer to indicate whether the 

request is for a Schedule A occupation, 

with instructions reminding the user 

that, for Schedule A occupations, the 

recruitment sections of the form need 

not be completed and the form should 

be submitted directly to USCIS for 

processing. We have modified the form 

to include these suggestions. 

• Clarify on the form that the ‘‘special 

requirement process’’ includes the 

optional process for college and 

university teachers. We removed the 

‘‘special requirement process’’ item and, 

under the recruitment section, included 

the optional process for college and 

university teachers. 

• Change the term ‘‘Education or 

Training: Highest Level Required’’ (see 

the proposed ETA Form 9088, Item 

section H) to ‘‘Education and Training: 

Minimum Level Required.’’ We have 

modified the new form 9089 to include 

this suggestion. 

• We addressed the comments 

regarding the need to specify technical 

degrees by adding a blank space 

identified as ‘‘Other.’’ This change 

allows the degree to be filled in by the 

employer. The number of technical 

degrees that commenters wished to have 

identified was too large to incorporate 

as a checklist on the application form. 

• Change Wage Offer Information (see 

the ETA Form 9089, section G) to read: 

Offered Wage Range, From: ll To: 

ll. Several commenters indicated the 

form should ask for a wage range 

instead of a specific wage rate. We have 

made this change to clarify that 

employers can offer a wage range as 

well as a specific rate as long as the 

bottom of the wage range (reflected in 

the ‘‘From’’ box) is not below the 

prevailing wage. 

• One commenter requested there be 

a box on the application form allowing 

the employer to go directly to 

supervised recruitment, rather than 

conduct pre-filing recruitment. We have 

decided not to provide this option to 

employers. The supervised recruitment 

process is lengthy, and is one of the 

reasons the current system is severely 

backlogged. Supervised recruitment will 

be conducted only if ordered by the CO. 

E. Schedule A 

The proposed rule did not change the 

general requirements for Schedule A

pre-certification. It proposed a technical 

change for the description of Group I 

professional nurses, specifying that only 

a permanent, full and unrestricted state 

license from the state of intended 

employment may be used as an 

alternative to passage of the 

Commission on Graduates of Foreign 

Nursing Schools examination (CGFNS). 

It also proposed moving aliens of 

exceptional ability in the performing 

arts (included under § 656.21a(a)(1)(iv) 

of the current regulations) to Group II of 

Schedule A.

We received several comments about 

the requirements for pre-certification for 

professional nurses. A number of 

commenters proposed additional 

occupations and classes of aliens to be 

added to Schedule A. No commenters 

objected to moving aliens with 

exceptional ability in the performing 

arts to Group II of Schedule A.

1. Nurses 

As proposed, an employer seeking 

permanent labor certification for a 

professional nurse must file, as part of 

its application with the DHS, 

documentation the alien has passed the 

CGFNS examination. Alternatively, the 

employer may document the alien has a 

permanent, full and unrestricted license 

77334 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

to practice nursing in the state of 

intended employment. 

A number of commenters suggested 

changes in the proposed rule that would 

allow a greater number of nurses to 

receive certification under Schedule A.

Several commenters addressed the 

requirement that foreign-trained nurses 

must demonstrate passage of the CGFNS 

examination. One commenter supported 

the proposed rule’s requirements for 

handling Schedule A applications, 

including the option of documenting 

that the alien holds a permanent license 

as an alternative to passage of the 

examination. 

Three commenters mistakenly 

thought that we were removing passage 

of the CGFNS examination as a means 

of certification. This appears to have 

been a misunderstanding of the 

preamble to the proposed rule, which 

stated: ‘‘only a permanent license can be 

used to satisfy the alternative 

requirement to passing the [CGFNS] 

exam’’ (see 67 FR at 30469). The 

proposed rule did not delete passage of 

the CGFNS examination as 

documentation of eligibility as a 

Schedule A professional nurse. The only 

change proposed was to specify that the 

full and unrestricted state license must 

be a permanent license. This revision 

conforms the general descriptions of 

aliens seeking Schedule A certification 

as professional nurses at § 656.5(a)(2) to 

the procedures regarding documentary 

evidence to support a Schedule A

certification at § 656.15(c)(2). 

One commenter requested 

clarification as to whether the rule 

requires a CGFNS Certificate or simply 

evidence of passing the CGFNS nursing 

skills examination. The commenter 

noted that successfully passing the 

CGFNS nursing skills examination 

results in issuance of a ‘‘pass’’ letter. 

The CGFNS Certificate is only issued if 

the individual has passed the nursing 

skills examination, demonstrated 

English language proficiency (by 

passing the Test of English as a Foreign 

Language or a similar exam) and CGFNS 

has made a favorable evaluation of the 

individual’s nursing credentials. This 

and another commenter requested the 

regulation be clarified to specify that 

passage of the CGFNS nursing 

examination, and not a CGFNS 

Certificate, is adequate documentation 

to satisfy § 656.15(c)(2).

After reviewing the comments, and 

information from CGFNS, we have 

modified the proposed rule to require in 

this final rule a CGFNS Certificate, not 

merely proof that the alien has passed 

the CGFNS nursing skills examination. 

When the current regulation was drafted 

CGFNS did not issue a Certificate, but 

instead required applicants to pass a test 

that evaluated both English proficiency 

and nursing skills. As such, we 

understood passage of the CGFNS 

nursing examination to include both 

factors. We believe proficiency in 

English is essential to perform the job 

duties of a professional nurse in the 

United States, due to the need to 

communicate with doctors and patients. 

The current CGFNS Certificate is 

analogous to passage of the old CGFNS 

nursing exam. 

Several commenters supported adding 

a provision allowing alien nurses who 

pass the National Council Licensure 

Examination for Registered Nurses 

(NCLEX–RN), administered by the 

National Council of State Boards of 

Nursing (NCSBN), to qualify for 

Schedule A. The commenters contended 

that because every state requires passage 

of the NCLEX–RN before issuing a 

permanent license, proof of passing 

should be another means to qualify 

under § 656.5(a)(2). Although the 

availability of the examination only in 

the U.S. and its territories had been a 

burden for foreign-trained applicants in 

the past, the commenters noted that the 

NCLEX–RN is being given in more 

locations abroad and some organizations 

bring foreign nurses to the U.S. to take 

the examination. 

Our intent in promulgating the 

existing and proposed Schedule A

procedures for professional nurses was 

to put an end to the pre-1981 practice 

whereby some nurses entered the 

United States on temporary licenses and 

permits, but failed to pass state 

examinations for a permanent license. 

We have determined that passage of 

NCLEX–RN examination is consistent 

with and furthers the policy rationale 

for allowing CGFNS Certification as an 

alternative to holding a permanent, full 

and unrestricted license to practice 

nursing in the state of intended 

employment. This final rule includes a 

provision in § 656.15 allowing 

certification by demonstrating passage 

of the NCLEX–RN. 

A few commenters noted procedural 

problems posed by the requirement of a 

permanent state license in the state of 

intended employment. Commenters 

asserted many states will not issue a 

permanent license until the applicant 

has a Social Security number, even 

when the nurse has passed the NCLEX–

RN. Because the NCLEX–RN is the final 

hurdle to the practice of nursing in a 

state, the commenters urged DOL to 

allow a foreign nurse to satisfy the 

permanent license requirement by 

having a letter from a state nursing 

board attesting to the nurse having 

passed the NCLEX–RN and having full 

eligibility for the RN license, pending 

receipt of a Social Security card. A 

commenter noted Alaska and a few 

other states already follow this practice.

Other commenters identified 

additional state-imposed obstacles to 

using the permanent license alternative, 

including refusal to issue a permanent 

license until the foreign-trained nurse 

has arrived in the United States, or 

requirements for in-state residence, a 

valid visa, and fingerprint screening. 

Allowing a foreign-trained nurse to 

satisfy the permanent license 

requirement by documenting success on 

the NCLEX–RN would also alleviate 

these barriers, according to the 

commenters. 

Two commenters raised a related 

issue about nurses who hold a 

permanent license in one state and are 

the beneficiary of a petition for 

employment in another state. In this 

situation, the alien nurse would not 

have to pass an examination in the 

second state, but would initially be 

given a temporary license in order to 

practice. The commenters maintained 

this type of temporary license should be 

distinguished from those situations in 

which the alien does not have a 

permanent license in any state. Because 

it believed that a temporary license in 

this situation is the functional 

equivalent of a permanent license, AILA 

suggested DOL add the following 

additional alternative to § 656.15(c)(2), 

to include alien nurses ‘‘who hold a 

temporary license in the state of 

intended employment and require no 

further examination to attain permanent 

licensure in that state.’’

We have decided not to recognize 

temporary licensure in the state of 

intended employment. As we have 

broadened the rule to include passage of 

the NCLEX–RN as qualifying for 

Schedule A, we believe virtually all 

alien nurses who have temporary 

licensure would be covered under this 

rule. This avoids any need to 

distinguish between different types of 

temporary licenses. In addition, the 

NCSBN indicates several states have 

passed legislation authorizing Nurse 

Licensure Compacts, which allow a 

nurse licensed in his or her state of 

residence to practice nursing in another 

state. It is anticipated that most states 

will pass legislation to authorize the 

Nurse Licensure Compact, and adopt 

the mutual-recognition model of nurse 

licensure. In the event of such 

legislation being passed, concerns raised 

by several commenters where an alien 

nurse is licensed in one state, but is 

sponsored to practice in another state, 

would be resolved. 

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77335

2. Performing Artists 

We received several comments 

supporting the proposal to add 

performing artists of exceptional ability 

to Group II of Schedule A. No 

commenters opposed this proposal. 

Accordingly, this final rule provides 

that performing artists of exceptional 

ability are included in Group II of 

Schedule A.

3. Expansion of Schedule A 

Several commenters recommended 

expansion of Schedule A to pre-certify 

certain occupations or classes of aliens. 

A high-tech company recommended 

expanding Schedule A occupations to 

provide for an ‘‘earned’’ labor 

certification for otherwise excluded 

foreign nationals when beneficial to the 

U.S. economy. This category would 

include employees who gained 

irreplaceable experience on the job, 

performed unusual combinations of 

duties or key duties; or who worked for 

the employer or its subsidiaries for a 

specified period of time, either within 

or outside the U.S.; and employees 

whose efforts had created jobs for U.S. 

workers. The commenter claimed 

including these categories under 

Schedule A would not interfere with 

streamlining and would protect U.S. 

workers, relieve DOL of its adjudication 

responsibilities because its burden 

would be shifted to USCIS Service 

Centers, and would afford an outlet to 

a deserving class that would otherwise 

be denied access to permanent 

residency under the proposed rule. 

Similarly, AILA recommended 

expanding Schedule A occupations to 

accommodate ‘‘special merit’’ foreign 

nationals, including company founders 

and managers; key employees in 

managerial, executive, or essential 

positions in affiliated, predecessor, or 

successor-in-interest companies; 

employees who have been employed by 

a U.S. employer for a certain number of 

years and gained irreplaceable training 

and experience in distinct positions; 

and employees central to the existence 

of the employer. 

Another commenter expressed 

concern that the proposed rule would 

adversely affect small businesses by 

declaring a large number of deserving 

aliens to be ineligible for labor 

certification. The commenter pointed to 

a list of such deserving but ineligible 

aliens: small business investors; 

employees in key positions who 

previously worked for affiliated, 

predecessor, or successor entities; 

employees who gained essential 

experience with the sponsoring 

employer; employees who are required 

to perform rare or unusual combinations 

of duties; and alien workers who are so 

inseparable from the sponsoring 

employer the employer would be 

unlikely to continue in operations 

without the alien. The commenter urged 

expanded use of Schedule A to cover 

these classes of aliens who would 

otherwise be denied access to 

permanent residency. 

All of these comments fail to address 

the core premise for Schedule A;

namely, pre-certification of occupations 

for which there are few qualified, 

willing, and available U.S. workers. 

Most of the categories suggested by 

commenters, such as key employees, 

employees with special or unique skills, 

and small business investors are not 

occupational categories; instead, as 

admitted by most of the commenters, 

they are categories of foreign workers. In 

light of our revisions to § 656.17(h) and 

(i) regarding job requirements and actual 

minimum requirements, some foreign 

workers with special or unique skills 

might be eligible for labor certification 

under the basic process. Regarding alien 

workers who are so inseparable from the 

sponsoring employer that the employer 

would be unlikely to continue in 

operation without the alien, we have 

long held the position that if a job 

opportunity is not open to U.S. workers, 

it is not eligible for labor certification. 

In addition to the above-cited 

categories, AILA proposed that 

Schedule A be revised to clarify the 

distinction between aliens of 

extraordinary ability, covered by 8 

U.S.C. 1153(b)(1), and aliens of 

exceptional ability, covered by Schedule 

A, Group II. AILA noted when DOL 

published the regulations implementing 

the Immigration Act of 1990 (IMMACT 

90), we recognized some aliens may 

qualify under Schedule A, Group II, as 

aliens of exceptional ability but may not 

be able to qualify as an alien of 

extraordinary ability. See 56 FR at 

54923 (October 23, 1991). AILA claimed 

DHS has continued to apply DOL’s preIMMACT 90 definition of exceptional 

ability, and has denied eligibility for 

Schedule A, Group II, unless the higher 

post-IMMACT 90 standard of 

extraordinary ability can be satisfied. 

AILA recommended we revise the 

definition of aliens of exceptional 

ability in a manner that makes material 

distinctions between exceptional and 

extraordinary ability. AILA suggested 

we develop a checklist of factors to 

establish exceptional ability analogous 

to the DHS criteria for aliens of 

extraordinary ability. AILA also 

suggested we allow the submission of 

other ‘‘comparable evidence’’ to 

establish the alien’s eligibility as a 

worker of exceptional ability, and 

permit exceptional ability aliens with a 

reasonable plan for job creation to selfsponsor under Schedule A. AILA further 

suggested we add persons with 

exceptional ability in business to Group 

II of Schedule A because business is a 

subset of science.

Whether or not a given application or 

alien beneficiary qualifies for Schedule 

A pre-certification is determined by 

DHS. We believe the criteria for aliens 

of exceptional ability in the sciences or 

arts at § 656.15(d)(1) are clear and do 

not need to be revised. Except for the 

recommendation we add a criterion for 

other comparable evidence of 

exceptional ability, the commenter 

made no specific suggestions as to how 

these criteria should be revised. We do 

not adjudicate Schedule A applications, 

and DHS rarely contacts our office for 

advisory opinions on these cases. If, as 

AILA claims, DHS has failed to adhere 

to the appropriate regulatory standards 

in reviewing applications for aliens of 

exceptional ability, recommendations 

for procedural changes should be made 

to DHS, not to DOL. 

We have determined that we will not 

add any new occupations or 

occupational categories to Schedule A

in this final rule not included in the 

Notice of Proposed Rulemaking. To add 

an occupation to Schedule A, we believe 

it is advisable to issue a proposed rule 

and provide an opportunity for public 

comment. 

Four university commenters urged 

DOL to include college and university 

teachers under Schedule A. The 

commenters claimed because virtually 

all such cases are certified under the 

current special handling requirements 

of § 656.21(a), these occupations should 

be moved to Schedule A. The 

commenters asserted this would allow 

DOL to focus its resources on other, less 

meritorious cases. 

We have no evidence of a lack of 

qualified, willing, and available U.S. 

workers in the occupation of college and 

university teacher. Absent evidence of a 

lack of available workers, we see no 

compelling reason why this 

occupational category should be added 

to Schedule A. If a college or university 

teacher can be considered an alien of 

exceptional ability in the sciences or 

arts, such an individual may be eligible 

for Schedule A pre-certification under 

§ 656.5(b)(1). Further, we note special 

recruitment procedures for college and 

university teachers are available under 

this final rule. 

AILA also suggested DOL create a 

provision for Schedule A that would 

incorporate a flexible, just-in-time 

system for occupation shortages. As 

77336 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

proposed by AILA, DOL would expand 

the use of technology already inherent 

in the new system to collect real-world 

data on job needs in particular job 

markets. DOL could then allow for 

flexible opening and closing of a special 

Schedule A group in response to acute, 

localized labor shortages. 

As with the other proposals to expand 

the categories of workers covered under 

Schedule A, the just-in-time system 

proposed by AILA would require 

additional rule making. We are also 

unsure whether data would be available 

to successfully implement such a 

system. While we anticipate the 

automated system will capture data 

regarding occupations being sponsored 

for labor certification, it is not clear all 

occupations being sponsored for labor 

certification are experiencing a lack of 

available workers. 

4. Prevailing Wage Determination 

Requirement 

Two commenters objected to the 

rule’s requirement that an employer 

must obtain a prevailing wage 

determination for Schedule A

occupations. One commenter asserted 

the current regulations do not require a 

prevailing wage determination for 

professional nurses, and this practice 

should continue. Similarly, AILA 

reasoned the wage determination 

requirement was unwarranted and 

would impose an unnecessary burden 

on the employer and the SWAs. AILA 

also contended DOL has already 

determined that hiring of foreign 

workers for Schedule A occupations 

will not depress wages for U.S. workers. 

As an alternative, AILA suggested DOL 

amend the application form to include 

an attestation that the employer is filing 

a Schedule A application, and then add 

language exempting the employer from 

the requirement of obtaining a SWAissued prevailing wage. According to 

AILA, DHS requires an employer offer 

letter or similar documentation 

describing the position and offered 

wage. 

This final rule retains the prevailing 

wage requirement for a number of 

reasons. First, the employer has always 

been required to certify that it is offering 

at least the prevailing wage for the 

occupation. Second, the current as well 

as the proposed regulation require an 

Immigration Officer to determine 

whether the employer and alien have 

complied with § 656.10, General 

Instructions, including whether the 

employer has attested to the conditions 

listed on the Application for Permanent 

Employment Certification form (ETA 

9089), which includes a requirement the 

employer attest it is offering at least the 

prevailing wage. Third, the fact DHS 

asks for documentation describing the 

position and offered wage has nothing 

to do with whether the employer is 

actually offering the prevailing wage.

5. Technical Correction 

We have corrected the reference at the 

end of the first paragraph in § 656.5, 

Schedule A from § 656.19 to § 656.15. 

F. Elimination of Schedule B 

We proposed to eliminate Schedule B

because our program experience 

indicated it has not contributed any 

measurable protection to U.S. workers. 

Once an employer files a Schedule B 

waiver, the application is processed the 

same as any other application processed 

under the basic process. Whether or not 

an application for a Schedule B

occupation is certified is dependent 

upon the results of the labor market test 

detailed in § 656.21 of the current 

regulations. 

A few commenters addressed the 

proposed change. Two commenters 

supported the elimination of Schedule 

B. Both of these commenters pointed 

out Schedule B occupations require 

little or no experience, and employees 

can be trained quickly to perform them. 

Two commenters opposed the 

elimination of Schedule B and suggested 

eliminating the Schedule B waiver 

instead. 

We can not maintain Schedule B

without a provision for a waiver. 

Schedule B is a list of occupations in 

which there generally are sufficient U.S. 

workers who are able, willing, qualified 

and available. It is not a blanket 

determination there are sufficient 

workers for the occupations on 

Schedule B in every area of intended 

employment in which employers may 

wish to employ foreign workers. 

Therefore, there must be a waiver for 

employers located in areas in which the 

general determination may not apply. 

Accordingly, this final rule does not 

contain a provision for Schedule B

occupations. 

G. General Instructions 

General instructions for filing 

applications, representation, 

attestations, notice, and submission of 

evidence are provided in § 656.10. 

1. Financial Involvement 

One commenter noted alien 

beneficiaries, not employers, drive the 

labor certification process. The 

commenter suggested this final rule 

require documentation of the 

employer’s financial involvement, or, 

alternatively, prohibit employers, 

agents, or attorneys from requiring 

aliens to pay the costs of the labor 

certification process and provide for 

penalties for imposing these costs on the 

alien beneficiary. 

While the suggestion to have the 

employer provide documentation of 

financial involvement may be of some 

merit, it was not included in the NPRM, 

and is a major departure from past 

practice; consequently, we believe we 

would have to issue a new proposed 

rule before we could promulgate a rule 

requiring such documentation. We 

believe it is more important to issue a 

final rule at this time to achieve the 

benefits under this final rule than to 

substantially delay realization of such 

benefits that would result by the 

issuance of another NPRM. 

It should be noted, however, evidence 

that the employer, agent, or attorney 

required the alien to pay costs could be 

used under the regulation at 

§ 656.10(c)(8) to determine whether the 

job has been and clearly is open to U.S. 

workers. 

2. Representation 

a. Attorneys and Agents 

The NPRM did not propose any 

modifications to the provision in the 

current regulation at 20 CFR 

656.20(b)(1) (found in this final rule at 

656.10) that allows employers and 

aliens to be represented by agents or 

attorneys. However, two attorneys urged 

we eliminate representation of 

employers and/or aliens by agents as 

provided in the current regulation. The 

commenters advanced three reasons for 

their recommendations. They 

maintained that: 

• Allowing representation by agents 

was contrary to statutes in all 50 states 

prohibiting the unauthorized practice of 

law; 

• Unlicensed agents are the ones most 

prone to perpetuate fraud on the 

Department of Labor and clutter the 

labor certification processing system 

with frivolous or poorly prepared cases; 

and 

• DOL should issue a regulation 

similar to the one issued by DHS at 8 

CFR 292 that governs the representation 

of employers and aliens before the DHS. 

Amending the regulations at 20 CFR 

656.10(b) as proposed by the 

commenters would be a major departure 

from our longstanding practice allowing 

representation by attorneys and agents, 

and may have serious consequences for 

those individuals who are now allowed 

to represent employers and/or aliens in 

the capacity of an agent. We believe it 

would be prudent before making such a 

major change in our longstanding 

practice and procedures to issue another 

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77337

proposed rule and consider the 

comments we would receive on the 

proposal. 

b. Notice of Entry of Appearance (Form 

G–28)

Another commenter recommended 

employers as well as attorneys be 

required to sign the Notice of Entry of 

Appearance (Form G–28). The 

commenter maintained not requiring the 

employer to sign the Form G–28 

encourages fraudulent practices, as 

employers at times have no knowledge 

of the labor certification application or 

of the attorney purporting to represent 

them. 

The labor certification process 

provided by this final rule does not 

require a Form G–28 if the employer is 

represented by an attorney. Requiring a 

Form G–28 would be incompatible with 

the electronic filing system provided for 

in this final rule. Elimination of the G–

28 will not inhibit or impede efforts to 

combat fraud. Under this final rule, 

employers will be required to sign in 

section N of the Application for 

Permanent Employment Certification an 

employer declaration which, among 

other things, states the employer has 

designated the agent or attorney 

identified in section E of the application 

form to represent it, and by virtue of its 

signature, takes full responsibility for 

the accuracy of any representations 

made by the employer’s attorney or 

agent. 

c. Retention of Documents by Attorney 

One attorney believed some 

immigration attorneys admonish their 

employer-clients to retain the 

enumerated recruitment documents for 

their records but not supply the 

documents to the attorney so the 

attorney can maintain plausible 

deniability for any document violation. 

The commenter recommended the 

attorney of record should be required to 

maintain copies of recruitment 

documents so he or she may be held 

accountable for the content of the 

application form. We believe it is 

sufficient under this final rule that the 

employer will be required to furnish 

recruitment documentation in the event 

of an audit or as otherwise required by 

a CO. 

3. Attestations 

Two commenters challenged the 

proposal in the NPRM to remove the 

regulatory requirements that the 

employer attest to the ability to pay the 

wage or salary offered to the alien 

worker and to place the alien on the 

payroll on or before the date of the 

alien’s entrance into the United States. 

We have been informed that DHS is 

planning to amend its regulation at 8 

CFR 204.5(g), which currently focuses 

on the ability to pay the proffered wage 

in the course of processing the 

employment-based immigrant petition, 

to require evidence focusing on the bona 

fides of the employer. 

DHS does not have a regulation that 

focuses specifically on the employer’s 

ability to place the alien on the payroll 

on or before the date of the alien’s 

proposed entrance into the United 

States. Ability to pay and the ability to 

place the alien on the payroll are not 

necessarily the same. An employer can 

be fiscally solvent but it may not be 

realistic, for example, to expect the 

plant or restaurant that is in the 

planning stage or under construction at 

the time the application is filed to be 

completed when the alien or U.S. 

worker is available to be employed in 

the certified job opportunity. 

After reviewing the comments and 

considering DHS’ planned revisions to 

its regulation, we have concluded that, 

in an attestation-based program where 

in the majority of cases the employer’s 

supporting documentation will not be 

available to the reviewer, it is 

appropriate to require the employer to 

attest to its ability to pay the alien and 

to place the alien on the payroll. It 

should also be noted the employer’s 

ability to place the alien on the payroll 

is not addressed by DHS regulations. 

Similarly, although rejection of U.S. 

workers for lawful, job-related reasons is 

dealt with in the regulation section on 

the recruitment report, and although the 

permanent full-time nature of the job 

opportunity, and required 

documentation is included in the 

definition of ‘‘employment,’’ we have 

concluded it would be beneficial in the 

context of an attestation-based system to 

add certifications addressing these 

issues. We have revised the final rule 

accordingly. 

4. Notice 

a. Expansion of Notice Requirement 

Several commenters addressed the 

expansion of the posting requirement to 

require, in addition to posting a notice 

of the filing of the ETA Form 9089 in 

conspicuous places at the employer’s 

place of employment, the employer 

publish the posting in any and all inhouse media, whether electronic or 

printed, in accordance with the normal 

procedures generally used in recruiting 

for other positions in the employer’s 

organization. 

Several commenters expressed 

concerns about the expansion of the 

posting requirement in the NPRM. One 

commenter expressed the view the 

information in proposed § 656.10(d)(3) 

informing employees how they can 

furnish documentary evidence bearing 

on the application to the CO is not in 

accordance with normal recruitment 

procedures. 

AILA stated employers do not 

normally post via in-house media for 

certain positions, such as senior or 

executive positions, because of 

confidentiality concerns. AILA 

suggested DOL amend the rule to 

provide that an employer post internally 

through any and all media normally 

used for other similar positions. A large 

employer asserted publishing an 

employment posting in any and all inhouse media is extraordinarily broad 

and could be construed to include 

training films, publicity postings, and a 

myriad of unrelated and unhelpful 

venues. This employer suggested the 

requirement in § 656.10(d)(ii) of the 

proposed rule be changed to read ‘‘(i)n 

addition, the employer must publish the 

posting in accordance with the normal 

procedures used for the recruitment of 

other positions in the employee’s 

organization,’’ thereby assuring that 

regular and accepted industry practices 

are followed in the labor certification 

process. 

Three universities were of the view 

the expanded posting requirements 

would not yield many applicants for 

highly specialized research and faculty 

positions. One university indicated it 

posted jobs in on-line and in-house 

publications normally read by current or 

potential employees. However, it did 

not publish faculty and academic 

research positions at those locations, as 

it did not see any positive result from 

doing so. 

A SWA supported expanding the 

posting requirement to include any and 

all in-house media. The SWA noted its 

experience indicated employment 

postings are poorly presented and often 

virtually invisible on employer bulletin 

boards. 

Another SWA noted the current 

posting requirement has not provided 

any applicants for job openings, and 

noted the expanded posting requirement 

does not provide any incentive for 

current employees to refer friends or 

relatives to the employer. The SWA 

recommended that employers should be 

encouraged to include a finder’s or 

referral fee in the posted notice.

With respect to the comment 

concerning the requirements at 

§ 656.10(d)(3) in the proposed and final 

rule concerning the furnishing of 

documentary evidence bearing on the 

application, § 656.10(d)(3) was drafted 

to implement the statutory requirement 

77338 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

provided by Section 122(b) of IMMACT 

90 that provided for the current notice 

requirement and provided, in relevant 

part, ‘‘any person may submit 

documentary evidence bearing on the 

application for certification (such as 

information on available workers, 

information on wages and working 

conditions, and information on the 

employer’s failure to meet the terms and 

conditions with respect to the 

employment of alien workers and coworkers).’’ It should also be noted the 

provision at § 656.10(d)(3) is similar to 

the provision in the current regulation 

at 20 CFR 656.20(g)(3). 

With respect to comments regarding 

the occupations subject to the posting 

requirement and the requirement the 

employer post internally through any 

and all media, it should be understood, 

as indicated above, the notice 

requirement in the regulations has been 

a statutory requirement since the 

passage of IMMACT 90. Section 

122(b)(1) of IMMACT 90 provides no 

certification may be made unless the 

employer-applicant, at the time of filing 

the application, has provided notice of 

the filing to the bargaining 

representative or, if there is no 

bargaining representative, to employees 

employed at the facility through posting 

in conspicuous places. In our view, 

Congress’ primary purpose in 

promulgating the notice requirement 

was to provide a way for interested 

parties to submit documentary evidence 

bearing on the application for 

certification rather than to provide 

another way to recruit for U.S. workers. 

See 8 U.S.C. 1182 note. 

Because the notice requirement is 

statutory, we do not believe that 

exceptions to the notice requirement 

could be based on the occupation 

involved in the application. As one 

SWA noted, printed postings on bulletin 

boards under the current regulation at 

20 CFR 656.20(g) are poorly presented 

and often virtually invisible. The 

posting regulation at § 656.10(d)(1)(ii) in 

this final rule provides, in relevant part, 

the posting must be published in any 

and all in-house media in accordance 

with the normal procedures used for the 

recruitment of other similar positions. 

For example, we would not expect a 

posting in a publication devoted to 

health and safety issues if job vacancies 

were not normally included in that 

publication. 

With respect to the recommendation 

by one SWA employee that employers 

should be required to include a finder’s 

or referral fee, we believe it is 

inappropriate to provide such an 

incentive under the posting regulations, 

because, as indicated above, the posting 

requirement is not designed to be a 

recruitment vehicle. We have, however, 

included referral incentives as one of 

the options employers may use in 

recruiting for professional workers in 

§ 656.17(e)(1)(ii) of this final rule. 

b. Notice for Schedule A Applications 

AILA questioned our basis for 

requiring employers to comply with the 

notice requirement for applications filed 

with DHS on behalf of Schedule A

occupations. AILA pointed out that 

Schedule A occupations are by 

definition those for which DOL has 

already determined that there are not 

sufficient U.S. workers who are able, 

willing, qualified, and available for the 

occupations listed, and the wages and 

working conditions of U.S. workers 

similarly employed will not be 

adversely affected by the employment of 

aliens. Therefore, no recruitment is 

required for Schedule A applications, 

and the adjudication of such 

applications has been placed by the 

DOL under the jurisdiction of DHS. 

AILA indicated it would serve no 

purpose for employers of Schedule A

applications to provide notice, and DOL 

should consider eliminating the 

unnecessary posting burden for 

employers. 

We have concluded employers must 

comply with the posting requirement to 

file applications under Schedule A with 

DHS. As we point out above, the statute 

provides no certification can be issued 

unless the employer has provided the 

required notice. Second, as stated 

previously, in our view Congress’

primary purpose in promulgating the 

notice requirement was to provide a 

means for persons to submit 

documentary evidence bearing on the 

application. This could, for example, 

include documentation concerning 

wage or fraud issues. Requiring 

employers to provide notice of their 

Schedule A applications is consistent 

with the practice under the current 

regulation at 20 CFR 656.20(g)(1). We 

have required employers to provide 

notice in connection with their 

Schedule A applications since the 

passage of IMMACT 90. See 56 FR at 

54924. 

c. Wage Range and Inclusion of Wage in 

Notice 

AILA noted the NPRM proposed that 

items required to be included in the 

recruitment advertisement (§ 656.17(f)), 

including the wage offered, must also be 

included in the notice. AILA 

maintained the salary ‘‘is often not 

provided by most employers when 

using ‘in house media’ or is simply 

referred to by a grade level.’’ AILA also 

maintained an employer should be able 

to use a salary range in the posting as 

long as the bottom of the range meets 

the prevailing wage.

AILA also said, after analyzing the 

interplay between §§ 656.21(b)(6), 

656.21(g)(6), and 656.21(g)(8) under the 

current regulations, they construed the 

‘‘no less favorable than offered the 

alien’’ language in § 656.21(g)(8) to 

require the employer to advertise a wage 

offer no less than the alien’s wage when 

initially hired; assuming, of course, the 

wage offer also meets or exceeds the 

prevailing wage. 

Employers can use a wage range in 

the required notice. It is longstanding 

DOL policy that the employer may offer 

a wage range as long as the bottom of 

the range is no less than the prevailing 

rate. See page 114 of Technical 

Assistance Guide No. 656 Labor 

Certifications (TAG). However, the 

prevailing wage, which provides the 

floor for the wage range, must be the 

prevailing wage at the time the 

recruitment was conducted for the 

application for which the employer is 

seeking certification, not the prevailing 

wage when the alien beneficiary was 

initially hired. 

The advertising requirements at 

§ 656.17(f) of this final rule no longer 

include wage or salary information; 

however, the wage offered must be 

included in the notice. The regulations 

implement the statute, which provides 

‘‘no certification may be made unless 

the applicant for certification has at the 

time of filing the application, provided 

notice of the filing.’’ Because the ETA 

Form 9089 includes the offered wage, 

the employer must include in the notice 

the wage offered to the alien beneficiary 

at the time the application is filed. 

Alternatively, the employer may include 

a salary range in the notice, as long as 

the bottom of the range is no less than 

the prevailing wage rate. The wage paid 

to the alien when initially hired is 

irrelevant. 

5. Timing and Duration of the Notice 

A few comments addressed when 

notice must be provided and the 

duration of the notice if it is 

accomplished by posting at the 

employer’s facility. 

a. When the Notice Must Be Provided 

AILA indicated the requirement in the 

NPRM that the notice must be posted 

between 45 and 180 days before filing 

the application was confusing in light of 

the recruitment provisions at § 656.17(d) 

of the NPRM, which requires 

recruitment be undertaken not less than 

30 days or more than 180 days before 

filing the application. AILA 

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77339

recommended the timing of the notice 

be consistent with the other 

‘‘advertising’’ requirements. Another 

commenter also recommended that 

notices of filing be posted 30 to 180 

days prior to filing the application. 

As explained above, the notice 

requirement is primarily a medium to 

obtain documentary evidence bearing 

on the application. We have concluded 

it makes little sense to require notice be 

provided 45 days before the application 

is filed when employers have 6 months 

to complete the recruitment required 

under the regulations. Further, making 

the time frames consistent with the 

timing requirements for conducting 

recruitment in § 656.17(e) would make 

the program easier to administer and 

reduce the potential for confusion and 

error on the part of employers filing 

applications for permanent alien 

employment certification. Accordingly, 

this final rule provides notice should be 

provided between 30 and 180 days 

before filing the ETA Form 9089. 

b. Duration of the Notice 

Two commenters observed the NPRM 

proposed the period the notice must be 

posted be increased from 10 consecutive 

days to 10 consecutive business days. 

One commenter indicated this increase 

was reasonable because it would 

maximize viewing by U.S. workers. This 

commenter also noted the notice 

requirement had been expanded to 

require posting in any and all in-house 

media, whether electronic or printed, 

but the proposed rule did not specify for 

how long. The commenter suggested the 

additional in-house media ‘‘advertising’’

be required for 10 days. We agree and 

the final rule provides that notice 

provided by posting to the employer’s 

employees at the facility or location of 

employment must be posted for 10 

consecutive business days. Posting in 

any in-house media, whether electronic 

or printed, should be posted for as long 

as other positions in those media are 

normally posted. 

6. Notice to Certified Collective 

Bargaining Representative 

The AFL–CIO maintained when a 

union has been certified as a collective 

bargaining representative for workers 

employed by the employer-applicant, 

the new regulations should require the 

union receive notice when a labor 

certification application is filed. 

Moreover, the union should be 

consulted to ascertain if there was an 

organizing campaign or other labor 

disturbance, because the employer may 

be attempting to thwart union efforts by 

replacing U.S. workers with foreign 

workers. The interests of workers 

seeking to exercise their rights to 

organize and bargain are indisputably 

harmed when employers attempt to 

pack bargaining units with foreign 

workers during an organizing campaign. 

For that reason, the AFL–CIO believed 

the regulations should include a 

requirement that DOL obtain 

certification from the National Labor 

Relations Board (NLRB) that there is no 

labor dispute as defined in the DHS 

operating instructions at 287.3. The 

AFL–CIO noted this definition of a labor 

dispute is broader than that described 

under the permanent labor certification 

regulations. The commenter also 

proposed if such a labor dispute arises 

after the labor certification is filed, the 

employer should be required to inform 

DOL. The AFL–CIO maintained DOL 

should also find a way for a union 

representing workers in the same 

occupation for which a foreign labor 

certification application was filed to 

have a formal and substantial role in the 

process. 

This final rule provides, pursuant to 

Section 122(b)(1) of IMMACT 90, and 

similar to the current regulations, that 

notice of the filing of the labor 

certification application must be given 

by the employer to the bargaining 

representative(s) (if any) of the 

employer’s employees in the 

occupational classification for which 

certification of the job opportunity is 

sought in the employer’s locations in 

the area of intended employment. 

We proposed no substantive changes 

to our current regulations regarding the 

showing the employer must make with 

respect to a labor dispute. Our program 

experience has not brought to light any 

reason why the current regulations 

should be changed. This rule has been 

in effect for over 20 years and our 

operating experience with this provision 

has demonstrated it is adequate for the 

protection of U.S. workers. Moreover, 

because our program experience points 

to the adequacy of the current 

regulations with respect to labor 

disputes, we are reluctant to make any 

changes to the labor dispute regulation 

that may not be compatible with our 

efforts to streamline the labor 

certification process. 

With respect to having the employer 

inform us of a labor dispute after the 

labor certification is filed, we do not 

believe such a provision will be 

necessary in the new system. In the new 

system, we do not contemplate in the 

majority of cases any significant delay 

between the filing of a labor certification 

and its adjudication thus notice is not 

necessary.

With respect to finding a way for the 

unions representing workers in the same 

occupation to have a formal and 

substantial role in the process, the AFL–

CIO did not provide any suggestions as 

to what such a role would be beyond the 

statutory notice requirement or the 

suggestion that the union should be 

consulted to ascertain whether there 

was an organizing campaign or other 

labor disturbance the employer may be 

attempting to thwart by replacing U.S. 

with foreign workers, which we have 

commented on above. Accordingly, this 

final rule makes no provision for unions 

to have a formal role in the labor 

certification process other than what 

was provided in the proposed rule. 

7. Inclusion of Posting Requirements in 

Recruitment Advertisement 

A SWA found the proposed 

expansion of posting provisions to be 

insufficient to provide workers with a 

complaint system. The SWA maintained 

the rule needs a mechanism to balance 

what the commenter views as employer 

bias in favor of foreign workers and 

against U.S. worker interests. The SWA 

recommended requiring that the 

wording of at least one of the mandatory 

recruitment advertisements under 

proposed § 656.17(d) conform to the 

language of the in-house posting, 

thereby giving U.S. workers who may be 

interested in or qualified for jobs offered 

to aliens the opportunity to submit 

complaints to DOL. This 

recommendation could be qualified by 

an exception for employers who can 

document programs to train and 

develop U.S. workers for the types of 

positions submitted for alien labor 

certification. On the topic of complaints, 

another SWA recommended the final 

rule enable an applicant to file a 

grievance against an employer within 30 

days of an interview. This SWA further 

suggested the employer give each 

applicant a comment card for DOL’s use 

if a complaint is filed. 

Regarding the suggestion to include 

the notice information in one of the 

required recruitment advertisements at 

§ 656.17(e), we do not believe this is 

appropriate. As described above, this 

final rule implements the statutory 

notice provision consistent with 

Congress’ intent. To require employers 

to place statutory notice requirements in 

their recruitment advertising would be 

counterproductive, as it would alert 

U.S. workers to the likelihood that the 

employer had selected an alien worker 

for the advertised job opportunity. 

Consequently, U.S. workers would 

likely be reluctant to expend the time 

and resources to apply for jobs for 

which they believe the employer has 

pre-selected the alien beneficiary of a 

labor certification application. 

77340 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

With respect to the SWA’s comment 

suggesting we implement a grievance 

system against the employer, the 

commenter did not explain how such a 

system would work or what role we 

would play in the process. We will 

accept documentary evidence about 

labor certification applications and 

consider the evidence in deciding 

whether or not to certify. We do not 

believe any more formal process is 

needed. 

8. Retention of Documents 

The Notice of Proposed Rulemaking 

did not contain any specific record 

retention requirements. Record 

retention requirements were implicit in 

the NPRM since it was stated, for 

example, in the preamble that ‘‘(t)he 

employer would not be required to 

provide any supporting documentation 

with its application but would be 

required to furnish supporting 

documentation to support the 

attestations and other information 

provided on the form if the application 

were selected for audit.’’ See 67 FR at 

30466. In discussing the audit process it 

was indicated employers would be 

expected to have assembled and have on 

hand all documentation necessary to 

support their applications before they 

were submitted. 67 FR at 30475. 

Additionally, the changes to the 

revocation regulation discussed below 

strengthen the need for specific record 

retention requirements in this final rule. 

As discussed below, because this final 

rule allows certifications to be revoked 

if the certification was not justified, a 

time limit has not been placed on the 

authority of the Certifying Officer to 

revoke a labor certification. It is also our 

understanding that DHS may want to 

review the employer’s supporting 

documentation in the course of 

processing the Form I–140 petition or 

for the purpose of investigating possible 

violations of the Immigration and 

Nationality Act. On the other hand, it 

would not be reasonable to require 

employers to maintain supporting 

documentation indefinitely. 

To resolve these competing 

considerations, in § 656.10(f), this final 

rule requires employers to retain 

supporting documentation for 5 years 

from the date the Application for 

Permanent Employment Certification is 

filed with the Department. Currently, it 

takes approximately 5 years to obtain a 

labor certification and an approved I–

140 petition. 

H. Fees 

The proposed rule contains a 

provision outlining how fees would be 

implemented in the event Congress 

passes legislation implementing the feecharging language in the President’s 

Fiscal Year 2005 Budget.

We received a variety of comments on 

the proposal to collect fees to process 

applications for alien employment 

certification. Most of the commenters 

supported fees only if they were 

reasonable, related to actual costs, and 

used solely for the labor certification 

program. One commenter opposed any 

fees that would seem to impose a 

penalty on hiring aliens. At least one 

commenter supported fees as long as 

services were delivered timely. Some 

commenters supported fees only if they 

could be implemented in conjunction 

with electronic filing. 

Two commenters opposed the 

imposition of fees. One commenter 

objected because DOL has never 

imposed fees in the past. Another 

commenter, who characterized DOL’s 

role in the labor certification process as 

adversarial, felt it was inappropriate to 

pay fees to a hostile agency. 

This final rule does not currently 

provide for collection of fees because 

legislation has not been passed that 

would allow DOL to collect fees and use 

the proceeds to process applications for 

alien labor certification. However, in the 

event Congress does pass such 

legislation, DOL will provide adequate 

notice and reserves the right to collect 

program fees within this rule. 

I. Labor Certification Applications for 

Schedule A Occupations 

1. Filing Requirements 

The only modification made to the 

proposed filing requirements for 

Schedule A applications was to require 

the employer to file only one form, the 

ETA Form 9089, rather than two. 

2. Documentation Requirements for 

Nurses 

As discussed above, proof of passage 

of the CGFNS examination will not 

qualify an alien for Schedule A

certification under the new system; a 

CGFNS Certificate will be required 

instead. However, passage of the 

NCLEX–RN examination will also 

qualify an alien for Schedule A

certification. Accordingly, § 656.15(c) of 

this final rule provides that an employer 

seeking a Schedule A labor certification 

as a professional nurse must file, as part 

of its labor certification application, 

documentation the alien has a CGFNS 

Certificate, has passed the NCLEX–RN 

exam, or holds a full and unrestricted 

(permanent) license to practice nursing 

in the state of intended employment. 

3. Documentation Requirements for 

Aliens of Exceptional Ability 

We received no comments objecting 

to the documentation requirements for 

aliens of exceptional ability in the 

sciences or arts. Therefore, the 

requirements in the NPRM are 

incorporated into this final rule. 

J. Labor Certification Applications for 

Sheepherders 

We received no comments on the 

proposed regulations for sheepherders. 

The only modification made to the 

proposed filing requirements for 

sheepherders is to require the employer 

to file only one form, the ETA Form 

9089, rather than two. 

K. Basic Process 

1. Filing Applications 

Employers will be required to file a 

completed ETA Form 9089 

electronically or by mail with a 

designated ETA application processing 

center. Applications filed and certified 

electronically must, upon receipt of the 

labor certification, be signed 

immediately by the employer in order to 

be valid. Applications submitted by 

mail must contain the original signature 

of the employer, alien, attorney, and/or 

agent when they are received by the 

application processing center. DHS will 

not process petitions unless they are 

supported by an original certified ETA 

Form 9089 that has been signed by the 

employer, alien, attorney and/or agent. 

Supporting documentation will not 

have been filed with the application, but 

the employer must provide the required 

supporting documentation if its 

application is selected for audit or if the 

CO otherwise requests it. 

The Department of Labor may issue or 

require the use of certain identifying 

information, including user identifiers, 

passwords, or personal identification 

numbers (PINS). The purpose of these 

personal identifiers is to allow the 

Department of Labor to associate a given 

electronic submission with a single, 

specific individual. Personal identifiers 

can not be issued to a company or 

business. Rather, a personal identifier 

can only be issued to a specific 

individual. Any personal identifiers 

must be used solely by the individual to 

whom they are assigned and can not be 

used or transferred to any other 

individual. An individual assigned a 

personal identifier must take all 

reasonable steps to ensure his or her 

personal identifier can not be 

compromised. If an individual assigned 

a personal identifier suspects, or 

becomes aware, that his or her personal 

identifier has been compromised or is 

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77341

being used by someone else, then the 

individual must notify the Department 

of Labor immediately of the incident 

and cease the electronic transmission of 

any further submissions under that 

personal identifier until such time as a 

new personal identifier is provided. 

Any electronic transmissions submitted 

with a personal identifier will be 

presumed to be a submission by the 

individual assigned that personal 

identifier. The Department of Labor’s 

system will notify those making 

submissions of these requirements at the 

time of each submission. 

The new system will limit the role of 

the SWA in the permanent labor 

certification process to providing PWDs. 

In the new system, the employer will 

still be required to obtain a PWD from 

the SWA, although the timing will 

change from a post-filing action to a prefiling action. 

2. Processing 

As explained in the section on fraud 

and abuse above, applications, at a 

minimum, will be initially reviewed, on 

receipt, to verify the employer exists 

and has employees on its payroll. 

Applications will be checked to make 

sure the employer is aware of the 

application being submitted on its 

behalf. 

3. Filing Date and Refiling of Pending 

Cases to New System 

Commenters addressed the 

conversion of pending cases to the new 

system. Two commenters addressed a 

potential relationship between the 

proposed rule and Section 245(i) of the 

INA. There were also comments on how 

the proposed prevailing wage 

determination requirement could affect 

the filing date. One commenter 

addressed the issue of whether an 

incomplete application should be datestamped and accepted for processing. 

a. Filing Date 

One commenter recommended all 

applications be date-stamped, instead of 

only those accepted for processing.

The NPRM made a distinction 

between cases denied and cases not 

accepted for processing. We have 

decided there are no practical 

differences in the consequences of 

denying an application compared to 

returning an application because it is 

unacceptable. We have abandoned the 

distinction between cases denied and 

cases not accepted for processing in the 

final rule. Under this final rule, 

incomplete applications will be denied 

and not processed. 

In the preamble to the NPRM (see 67 

FR at 30470), we stated applications that 

are not accepted for processing will not 

be date-stamped to minimize the 

administrative burden and to discourage 

employers from filing incomplete 

applications merely to obtain a filing 

date. We do not believe it is 

unreasonable to require the employer to 

enter all required information on the 

application form. Further, employers 

could immediately refile any 

application that is rejected for 

processing, so any delay in obtaining a 

filing date will be minimal and largely 

in the employer’s control. 

(1) Possible Reinstatement of Section 

245(i) 

Section 245(i) of the INA enables 

many individuals who qualify for 

permanent residency to adjust their 

status to permanent resident in the U.S., 

rather than having to leave the U.S. and 

apply at a consulate. One way aliens 

could qualify for eligibility under 

Section 245(i) was to have a labor 

certification application filed on their 

behalf by April 30, 2001, which was the 

sunset date for Section 245(i). 

Commenters were concerned about 

possible legislation that would reinstate 

Section 245(i) and believed the 

proposed procedures for conducting 

pre-filing recruitment would be so time 

consuming that many individuals 

would not be able to file completed 

applications in time to meet a new filing 

deadline. 

We can not base our decisions about 

the design of the labor certification 

process on the possibility of legislative 

action extending Section 245(i). 

Moreover, an extension of the Section 

245(i) deadline is not relevant to the 

determination the Secretary of Labor 

must make under § 212(a)(5)(A) of the 

INA. 

(2) Prevailing Wage Determination 

Requirement 

Sections 656.15 through 656.19 of the 

proposed rule would require an 

employer to obtain a PWD from the 

SWA before filing a labor certification 

application. One commenter suggested 

this could delay filing the application if 

there is disagreement about the 

prevailing wage. The commenter 

recommended employers be allowed to 

submit the application to DOL before 

receiving the PWD. Another commenter 

recommended the filing date should be 

established when the PWDR (ETA Form 

9088) is filed with the SWA, rather than 

when the labor certification application 

is filed with DOL. A third commenter 

noted information on the PWDR form, 

such as the job description and special 

requirements, also should go to the 

DHS. 

The recommendation to use the date 

the PWDR is filed with the SWA as the 

filing date is not practical under this 

final rule. As indicated above, we will 

have only one form in the streamlined 

labor certification system. We have 

combined the PWDR (ETA Form 9088) 

with the Application for Permanent 

Employment Certification (ETA Form 

9089). Employers will not be submitting 

a DOL form to the SWAs to obtain a 

prevailing wage determination. Instead, 

employers will make a request to the 

SWAs for a PWD, and will receive the 

wage determination from the SWA as 

they do now. This final rule does not 

require a particular form for employers 

to submit requests for wage 

determinations to SWAs or for SWAs to 

use in responding to requests for wage 

determinations. Employers will, 

however, be expected to provide the 

PWD they received from the SWAs in 

the event of an audit or other request 

from the CO. 

Further, we do not believe it prudent 

to depart from our longstanding practice 

of assigning the filing date at the time 

an application is accepted. Basing the 

filing date on the date a request for a 

PWD is made with the SWA may lead 

to program abuses. For example, such a 

change could encourage employers to 

file more wage requests than needed to 

obtain an earlier filing date, or 

encourage employers to file many 

applications at the end of the year, 

before the upcoming year’s 

Occupational Employment Statistics 

(OES) wages are released. Also, due to 

local variations in the time it takes 

SWAs to issue wage determinations, the 

wage determination would be an 

inconsistent source of a filing date. 

b. Refiling of Pending Cases in New 

System 

Several commenters expressed 

concern about the proposed provisions 

that would allow employers to 

withdraw applications for alien 

employment certification filed under 

the current regulations and file an 

application for the identical job 

opportunity under the proposed rule 

without loss of the filing date of the 

original application. 

(1) Identical Job Opportunity 

One commenter noted because of the 

proposed elimination of business 

necessity, elimination of the use of 

alternative job requirements, and 

disallowance of experience gained with 

the employer to be used as qualifying 

experience, many pending labor 

certification applications would not be 

able to be refiled under the proposed 

rule with identical job qualifications 

77342 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

and salary. This commenter suggested 

broadening the definition of identical 

job opportunity to include a job 

opportunity by the same employer (or 

its successor in interest) for the same 

alien in the same field of endeavor, even 

if the duties, salary, skill level and 

educational or experience requirements 

are not identical. Another commenter 

emphasized an applicant should be able 

to amend, add, or delete information, 

such as job duties and requirements, in 

the new application. The commenter 

claimed because the employer must 

recruit under the new regulations, the 

employer should be able to use the 

SWA’s initial review and make changes. 

In determining whether the job 

opportunity is ‘‘identical’’ to the job 

opportunity as described in the 

employer’s application filed under the 

current regulations, the employer, alien, 

job title, job location, and job 

description must be identical to those in 

the original application, including any 

amendments made in response to an 

assessment notice from the SWA under 

§ 656.21(h) of the regulation as it existed 

prior to the effective date of this final 

rule. 

We have not broadened the definition 

of identical job opportunity as suggested 

by commenters. As discussed below, 

this final rule provides for requirements 

based on business necessity, alternate 

experience requirements, and in certain 

limited circumstances, to allow 

experience gained with the employer to 

be used as qualifying experience. See 

our discussion of job requirements, 

alternate experience requirements, and 

actual minimum requirements below. 

(2) Withdrawing and Refiling Cases

One commenter recommended 

employers not be allowed to withdraw 

cases from the current system and refile 

under the new system if recruitment of 

U.S. workers has already begun. The 

commenter stated DOL should be 

consistent with the RIR conversion 

regulations, which prohibit employers 

from converting pending applications to 

RIR if a job order has been filed by the 

SWA. The commenter also warned that 

U.S. workers who are willing, qualified, 

and available would not be referred 

when the application converts to the 

new system. 

In establishing a limit on when a 

pending application may be refiled in 

the streamlined system, we reviewed 

our regulation governing when cases 

filed under the current basic process 

may be converted to RIR processing. As 

noted by the commenter, in our final 

rule regarding conversion of pending 

cases to RIR applications, we allowed 

employers to request an RIR conversion 

up to the point the SWA had placed a 

job order under § 656.21(f)(1) of the 

current regulation. 

Similarly, the final rule has been 

revised at § 656.17(d) to provide that an 

employer may withdraw an existing 

application, refile under this final rule 

and retain the original filing date up 

until the placement of a job order under 

§ 656.21(f)(1) of the current regulations. 

As indicated in the preamble to the 

proposed rule for the RIR conversion 

regulations, it would be incongruous to 

permit withdrawal and retention of the 

filing date from an employer who had 

already commenced the mandated 

recruitment. If an employer withdraws 

an existing application after a job order 

has been placed, the employer may file 

an application under this final rule for 

the same job opportunity; however, the 

original filing date can not be retained. 

See 65 FR at 46083 and 66 FR at 40586. 

A filing date on a withdrawn 

application can only be used one time 

to support an Application for 

Permanent Employment Certification

filed under this final rule. Such a 

refiling must be made within 210 days 

of the withdrawal; the 210-day period is 

intended to allow time for the employer 

to conduct the recruitment required by 

this final rule. If the refiled application 

is determined not to be identical to the 

original application in accordance with 

§ 656.17(d), the refiled application will 

be processed using the new filing date, 

and the original application will be 

treated as withdrawn. If the refiled 

application filed under this final rule is 

denied, the filing date on the withdrawn 

application can not be used on another 

application for permanent employment 

certification. 

(3) Test of the Labor Market 

Several commenters discussed 

retesting the labor market and rerecruiting for the refiled application. 

The commenters addressed the financial 

burden of re-recruitment, and backlog 

reduction. 

Three commenters emphasized 

requiring an employer to undertake 

another recruitment campaign to 

comply with the requirements of the 

streamlined labor certification system is 

unduly burdensome. The commenters 

stated it is unfair to require employers 

to invest more of their resources for 

retesting the market solely for the 

purpose of using the new system. AILA 

contended employers should not be 

required to expend resources on 

additional recruitment unless there is a 

compelling Governmental interest to 

support additional recruitment.

Two commenters also asserted an 

employer should be allowed to refile a 

pending application under the new 

system without having to re-test the 

market, if the applicant complied with 

all the filing and recruiting 

requirements under the regulations 

effective at the time it filed the 

application, to alleviate the backlog of 

cases. The commenters noted the 

backlog has prevented many 

applications that complied with existing 

rules from being approved. 

We do not believe the requirements 

for refiling cases are burdensome. 

Employers are not required to refile 

existing cases under the new system, so 

if an employer does not wish to incur 

the expense of additional recruitment 

efforts, it need not do so. There is no 

guarantee an employer’s prior 

recruitment effort was an adequate test 

of the labor market, and additional 

recruitment would not have been 

required under the current regulations. 

It would be administratively unwieldy 

to have multiple standards for reviewing 

recruitment information, and would be 

incompatible with a streamlined system. 

We have concluded employers should 

not obtain the benefits of the new 

system if they have not complied with 

all of its requirements. 

(4) Transition to the New System 

One commenter requested guidance 

on how applications being prepared for 

filing under the RIR process would be 

transitioned to the new system. The 

commenter requested all labor 

certification applications that placed 

advertisements before the effective date 

of the final rule be allowed to proceed 

under the standards of regulations in 

effect when the advertisements were 

placed, unless the employer elects to 

proceed under the new system. Another 

commenter inquired about the transition 

process and schedule that will be 

followed to implement the proposal. 

Specifically, the commenter requested a 

target implementation date and clear 

guidance on the transition of cases to 

the new system. A third commenter 

noted it is unclear how cases filed under 

the old regulation will be transitioned. 

The commenter noted employers will be 

required to obtain the Application for 

Alien Employment Certification (ETA 

750), Part A from the SWA to show 

documentary proof that the job 

opportunities are identical. One 

commenter suggested, to reduce the 

backlog, DOL eliminate the second 

phrase of proposed § 656.17(c)(3)(i), ‘‘if 

the employer has complied with all of 

the filing and recruiting requirements of 

the current regulations.’’ Another 

commenter suggested when an 

employer converts an application to the 

new system, the employer should 

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77343

identify whether it has conducted 

recruitment as a part of the original 

application. The commenter 

recommended the converted application 

be selected for an audit if the original 

recruitment yielded applicants. The 

commenter contended DOL should not 

lose the recruitment information in an 

application when it converts to the new 

system. 

AILA suggested employers not be 

required to obtain a new prevailing 

wage, and the employer should be able 

to use all supporting documentation 

submitted with the original application. 

As of the effective date of this final 

rule, all applications for labor 

certification must be filed in accordance 

with this final rule. While we will 

continue to process applications filed 

under the current regulations, the SWAs 

will not accept any applications filed 

under the current regulations after the 

effective date of this final rule. Because 

this final rule will not become effective 

until 90 days after publication in the 

Federal Register, we believe the 90 day 

delayed effective date for this final rule 

will provide employers, including those 

employers contemplating filing RIR 

applications, with sufficient time to 

adjust their recruitment programs to the 

requirements of the new system. 

In response to commenters’ concerns 

about how proof of filing under the 

current regulations will be obtained, the 

regulation has been revised to provide, 

that if requested by the CO under 

§ 656.20, the employer must send a copy 

of the original application together with 

any amendments to the appropriate ETA 

application processing center. Specific 

instructions for the withdrawing of 

cases that are to be refiled under this 

final rule, will be posted at http://

workforcesecurity.doleta.gov/foreign/.

Employers that have already begun 

supervised recruitment may not refile 

under this final rule and maintain the 

original application’s filing date. 

Therefore, the commenter’s concern 

about losing recruitment information 

when applications are converted is not 

an issue. 

If operating experience indicates 

further guidance on refiling cases is 

needed, we will issue to the SWAs and 

COs a policy directive, which we will 

publish in the Federal Register, 

outlining in further detail the 

procedures to be followed in 

adjudicating such requests. 

(5) Priority in Processing Applications 

One commenter addressed the 

priority of applications filed before this 

final rule’s effective date. The 

commenter believed we should give 

these pending applications priority in 

processing because a majority of them 

would fail to meet the standards 

contained in the Notice of Proposed 

Rulemaking. 

AILA suggested we process 

conversion applications ahead of new 

applications to avoid further delays. 

AILA asserted many employers will not 

convert their cases to the new system 

unless restrictions are changed or the 

applicants’ cases are ‘‘grandfathered.’’

We will process applications, 

including properly refiled applications, 

in the order in which they were filed 

under this final rule. 

4. Pre-Filing Recruitment Requirements 

Under the proposed rule, the 

employer must recruit during the 6-

month period before filing the 

application. Recruitment for 

professional occupations consists of a 

job order and two print advertisements 

plus three additional steps. Recruitment 

for nonprofessional occupations 

consists of a job order and two print 

advertisements. We specifically invited 

comment on the advertising 

requirements, and the different 

requirements for professional and 

nonprofessional occupations. 

We received more than 40 comments 

on the proposed recruitment 

requirements. Comments came from 

SWAs, employers, attorneys, 

organizations, and private individuals. 

The SWAs, FAIR, and the AFL–CIO 

were supportive, and even suggested 

additional requirements. 

The remaining commenters were 

generally opposed to the pre-filing 

recruitment requirements outlined in 

the NPRM. Commenters objected to the 

requirements on the grounds that 

employers would not have enough 

discretion in their choice of recruitment 

methods and the requirements were 

excessive. A number of commenters 

specifically compared the proposed rule 

to current RIR requirements. AILA and 

ACIP, among others, suggested the new 

requirements be the same as for RIR 

processing. This, they felt, would allow 

employers to use real-world recruitment 

methods and prevent DOL from micromanaging the recruitment process. 

Other commenters did not specifically 

mention RIR processing, but stated the 

proposed requirements were not realworld.

Comparing the requirements in the 

new system to RIR requirements 

presents only part of the picture. 

Employers may use RIR processing only 

for occupations for which few or no U.S. 

workers are available. Employers who 

file under the basic labor certification 

process have always been required to 

follow a specific recruitment regimen. 

In addition, although RIR processing 

allows the employer more discretion in 

its recruitment methods than allowed in 

the proposed regulations, it requires a 

hands-on, case-by-case review. This 

type of review is incompatible with a 

uniform, streamlined system. In this 

final rule, we have prescribed a 

recruitment regimen in § 656.17(e) that, 

based on our program experience, is the 

most appropriate for all occupations. 

a. Job Order and Two Print 

Advertisements 

In addition to the more general 

comments about the recruitment 

regimen, we received specific comments 

about the requirements for a job order 

and two Sunday print advertisements. 

With few exceptions, commenters 

focused on professional occupations 

and did not specifically address the 

appropriateness of the requirements for 

nonprofessional occupations. 

(1) Job Order 

Relatively few commenters 

specifically addressed the requirement 

for a job order. FAIR and the AFL–CIO 

supported a job order for all 

occupations. Almost all others who 

commented on the requirement opposed 

it, mostly because they felt it was 

ineffective. 

For the past 25 years, employers have 

been required to place a job order as 

part of their supervised recruitment 

efforts. Placing a job order requires no 

fee, and minimal effort from the 

employer. SWAs encourage everyone 

who is unemployed or looking for work 

to search the Job Bank for openings. We 

see no compelling reason to delete the 

requirement for a job order, which 

reaches a large pool of applicants who 

are actively seeking work. 

(2) Newspaper Advertisements 

Very few commenters discussed the 

requirement for a Sunday advertisement 

versus a midweek advertisement. One 

SWA called it an extremely important 

change, noting many employers 

deliberately avoid Sunday 

advertisements because they are more 

costly and more likely to yield a 

response. 

Many commenters addressed the 

requirement for two print 

advertisements. Of these, the vast 

majority opposed the requirement. 

Some commenters were concerned 

about the cost. Most of these 

commenters worried that a long, 

detailed advertisement would be far 

more costly than an RIR-style 

advertisement. A couple of these 

commenters also felt that our estimate of 

77344 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

$500 per advertisement was much too 

low. 

A more common objection was that 

the proposed requirements did not 

reflect real-world practice. Most of the 

commenters who objected to print 

advertisements focused on the high-tech 

industry, although several referred to 

university research positions. These 

commenters, who rely heavily on online 

advertising, contended newspaper 

advertisements are ineffective. ACIP, 

among others, felt that print 

advertisements were anachronistic. The 

Society for Human Resource 

Management (SHRM) stated the most 

effective and cost-efficient ways to 

recruit are not through print 

advertisements, but through alternatives 

such as notices in job centers and jobsearch websites. One university felt a 

journal devoted to the specific academic 

field was more effective than a 

newspaper of general circulation. This 

commenter also believed for jobs 

requiring experience and an advanced 

degree, two journal advertisements in 

two separate months should be allowed 

in lieu of the two newspaper 

advertisements. Another university 

proposed that colleges and universities 

be allowed to use professional journals, 

announcements on the websites of 

professional organizations, mailings to 

academic peers, and internal human 

resources websites. 

Some of the commenters who favored 

no print advertisements suggested, in 

the alternative, only one Sunday print 

advertisement, consistent with current 

RIR requirements. SHRM favored one 

Sunday newspaper advertisement plus 

the option of either a second Sunday 

newspaper advertisement or an 

advertisement with an alternate source 

appropriate to the occupation and to the 

workers likely to apply for the job. 

AILA raised a concern about 

advertising for nonprofessional 

occupations. Noting the major source of 

recruitment for some nonprofessional 

jobs is a trade or professional 

organization or a job fair, AILA 

proposed that either of these two 

recruitment sources be allowed in lieu 

of the second newspaper advertisement.

Commenters did not specifically 

object to placing Sunday, versus 

midweek, advertisements, although a 

couple of commenters who objected to 

advertising costs noted Sunday 

advertisements were more costly. 

SHRM, however, pointed out not all 

suburban and rural newspapers publish 

a Sunday edition. Referring to language 

in the NPRM, SHRM noted it would be 

appropriate to advertise in a suburban 

newspaper of general circulation for 

certain nonprofessional occupations. 

Therefore, SHRM asked that publication 

in a newspaper that does not have a 

Sunday edition be allowed if that 

newspaper is the most appropriate to 

the occupation and the workers likely to 

apply for the job opportunity in the area 

of intended employment. 

A number of commenters objected to 

the proposed requirement that the two 

print advertisements be placed at least 

28 days apart. 

Commenters who compare the cost of 

print advertising under the proposed 

rule to the cost under RIR processing 

make an inappropriate analogy. They 

use one RIR-style advertisement as the 

current standard rather than the 

relatively detailed, three-day 

advertisement required under basic 

processing. We believe the cost of two 

Sunday advertisements is not an 

unreasonable expense. See our 

discussion of advertisement contents 

below for a more comprehensive 

discussion of cost. 

Although commenters claimed 

newspaper advertisements are highly 

ineffective, our program experience has 

shown these arguments are overstated. 

Unlike other forms of recruitment, 

newspaper advertisements are 

appropriate for all job categories. A 

review of the classifieds, especially 

Sunday editions, shows that newspaper 

advertisements are still customary for 

both high-tech and non-high-tech jobs. 

Carving out exceptions for employers 

who prefer to rely on other sources of 

recruitment is inconsistent with the 

streamlined system. The requirement 

that print advertisements appear in the 

Sunday edition of a newspaper of 

general circulation most appropriate for 

the occupation and the workers likely to 

apply for the job ensures the 

advertisement will reach the widest 

possible pool of potentially qualified 

applicants. 

No serious objections were raised to 

requiring Sunday, in lieu of midweek, 

advertisements for professional 

occupations; therefore, this requirement 

is retained. However, we recognize an 

exception is needed in limited 

circumstances. Therefore, this final rule 

provides in those cases in which 

advertising in a rural newspaper would 

be appropriate but for the fact that the 

newspaper has no Sunday edition in the 

area of intended employment; the 

employer may use the edition with the 

widest circulation in the area of 

intended employment. However, the 

employer must be able to document the 

edition chosen has the widest 

circulation. This exception applies to 

rural newspapers only; if a suburban 

newspaper has no Sunday edition, the 

employer must publish a Sunday 

advertisement in the most appropriate 

city newspaper that serves the suburban 

area. 

We have also concluded there is no 

compelling reason to require the two 

Sunday advertisements be 28 days 

apart. Therefore, we have deleted this 

requirement. The two advertisements 

must be placed on different Sundays, 

but the Sundays may be consecutive. 

The only timing requirement is the two 

advertisements (as well as the job order) 

must be placed more than 30 days but 

less than 180 days before filing the 

application.

(3) Professional Journals 

A number of commenters addressed 

the requirement for an advertisement in 

a professional journal if the job requires 

experience and an advanced degree. 

One SWA prevailing wage specialist 

supported the requirement that 

professional jobs be advertised in 

professional journals. This commenter 

claimed that computer companies’ web 

advertising is easy to post on the 

internet, print, and then take off the 

internet. FAIR suggested requiring a 

professional journal advertisement in 

addition to the two Sunday newspaper 

advertisements. FAIR also felt that more 

restrictive requirements in the job 

opportunity should require more 

extensive recruitment. One university, 

although not specifically addressing the 

requirement for a journal advertisement, 

felt a journal devoted to the specific 

academic field was more effective than 

newspapers of general circulation. This 

commenter also felt that for jobs 

requiring experience and an advanced 

degree, two journal advertisements in 

two separate months should be allowed 

in lieu of the two newspaper 

advertisements. 

On the other hand, at least one 

commenter felt the journal requirement 

was excessive. This commenter stated 

that most labor certification positions 

are for experienced workers, and many 

positions in the technology sector 

require a master’s degree; therefore the 

requirement would apply to a very large 

number of applications. This 

commenter also stated that professional 

journals are a customary source of 

recruitment only for high-level 

managerial, executive, and scientific 

positions; therefore, we should not 

expand the journal requirement to cover 

mid-level, journeyman positions. AILA 

pointed out in some cases there is no 

appropriate professional journal or it is 

not industry practice to advertise in a 

professional journal. At least one 

commenter objected to a journal 

advertisement because it was more 

costly than advertising in a newspaper. 

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77345

We have concluded although 

professional journals are an appropriate 

source of recruitment for many jobs that 

require an advanced degree, the 

requirement in the NPRM is too broad. 

Therefore, this final rule in 

§ 656.17(e)(1)(i)(B)(4) allows the 

employer discretion in using a 

professional journal. If a journal 

advertisement is appropriate for the job 

opportunity, the employer may choose, 

but is not required, to use a journal 

advertisement in lieu of one of the 

Sunday print advertisements. 

b. Additional Recruitment Steps for 

Professional Occupations 

We received numerous comments 

about the three additional steps required 

for professional occupations. With few 

exceptions, commenters opposed either 

the number of additional steps or the 

limited list of alternatives. 

Most commenters felt requiring three 

additional recruitment steps was too 

burdensome, especially on smaller 

employers. One commenter stated the 

additional recruitment steps were a 

drastic increase over RIR requirements. 

AILA stated DOL had failed to address 

how much the additional steps would 

cost and whether they were more 

effective than the employers’ normal 

recruiting practices. Another commenter 

felt the additional steps would 

discourage employers from applying for 

labor certification. Many commenters 

recommended eliminating or decreasing 

the number of additional steps. 

A number of commenters felt the list 

of six additional recruitment steps was 

too narrow, and employers should have 

more flexibility to select steps that are 

consistent with the employer’s standard 

recruiting procedures. Another 

commenter noted all employers may not 

be able to take advantage of all six steps; 

some steps may be too costly and others 

may not always be available. This 

commenter suggested that alternate 

recruitment steps include notification to 

campus placement offices, postings at 

continuing education seminars, and 

recruitment at companies with recent 

layoffs. Other commenters suggested 

expanding the list of additional steps to 

include employee referrals, help-wanted 

signs, signage on the company building, 

employee referral programs, other media 

(such as radio, billboards, or television), 

print advertisements in any publication 

(such as local and ethnic papers), 

searching commercial re ́sume ́ databases, 

and open houses. More than one 

commenter felt a job posting on a 

newspaper-sponsored job search 

website should count as an additional 

step, even though the web posting was 

made in conjunction with the print 

advertisement. 

A few commenters objected to the 

time requirements for the additional 

recruitment steps. AILA noted 

employers may want to blitz the 

marketplace in a relatively short period 

(e.g., 1 to 2 months). AILA also 

requested clarification concerning when 

the recruitment steps must be taken. 

We recognize not all of the additional 

recruitment steps are available or 

appropriate for all employers; however, 

employers are required to select only 

three of the additional steps listed in the 

NPRM. The list of alternatives was 

based on what our program experience 

has shown are real-world methods 

normally used by businesses to recruit 

workers. 

Although we are retaining the 

requirement for three alternative steps, 

we agree the list of alternatives is too 

narrow. Some of the suggested 

alternatives, such as searches of re ́sume ́

databases, we have rejected because 

they are too difficult to verify; however, 

others are appropriate as well as easily 

verifiable. Therefore, we have expanded 

the list of alternatives in 

§ 656.17(e)(1)(ii) of this final rule to 

include the following forms of 

recruitment: an employee referral 

program, if it includes identifiable 

incentives; a notice of the job opening 

at a campus placement office, if the job 

requires a degree but no experience; 

local and ethnic newspapers, to the 

extent they are appropriate for the job 

opportunity; and radio and television 

advertisements. A sufficient number of 

the alternatives are free or low in cost 

so as not to impose an undue financial 

hardship on the employer.

In addition to expanding the list of 

alternatives, this final rule incorporates 

changes to two of the alternatives listed 

in the NPRM. An online job listing, even 

if posted in conjunction with a print 

advertisement, qualifies as an additional 

recruitment step. The use of a 

professional or trade organization is still 

acceptable, but must be documented by 

copies of pages of newsletters or trade 

journals containing advertisements for 

the job opportunity involved in the 

application. 

We believe the additional recruitment 

steps represent real world alternatives. 

The overwhelming majority of 

employers seriously recruiting for U.S. 

workers would routinely use one or 

more of the listed additional 

recruitment steps. Additionally, it 

should be noted the alternative 

recruitment steps only require 

employers to advertise for the 

occupation involved in the application 

rather then for the job opportunity 

involved in the application as is 

required for the newspaper 

advertisement. Allowing employers to 

recruit for the occupation involved in 

the application should also work to 

minimize employer costs to conduct 

special recruitment efforts solely to 

satisfy the alternative recruitment steps. 

In sum, we do not believe the cost to 

employers of the additional recruitment 

steps will be significant. 

The timing requirements in this final 

rule are the same as those in the NPRM. 

All additional recruitment steps must be 

taken within 6 months of filing; 

however, employers are not required to 

take a different step each month. Only 

one of the additional steps may be taken 

within 30 days of filing. 

c. Recruitment for Occupations in 

Appendix A to the Preamble 

In Appendix A to the preamble, we 

have published a list of occupations for 

which a bachelor’s or higher degree is 

a customary requirement, and for which 

the employer must recruit under the 

standards for professional occupations 

set forth in § 656.17(e)(1). We are not 

codifying this list of occupations so that 

we can appropriately and timely modify 

it as necessary without having to engage 

in the rulemaking process. 

(1) Definition of Professional and 

Nonprofessional Occupations 

AILA maintained the definition of 

professional occupation should not be 

limited to an occupation for which the 

attainment of a bachelor’s degree is a 

usual requirement because it neglects 

individuals who gain professional 

expertise through work experience 

instead of education. To set the standard 

between professional and 

nonprofessional based on whether the 

person has a bachelor’s degree or not is 

arbitrary and does not reflect the real 

world or take into account individuals 

who have gained professional expertise 

through work experience instead of 

education. AILA suggested we should 

create a broader, more realistic 

definition for professional and 

nonprofessional occupations, such as an 

occupation for which the attainment of 

a bachelor’s or equivalent is the usual 

requirement for the position. The 

nonprofessional occupation definition 

should also reflect this more realistic 

understanding: ‘‘an occupation for 

which the attainment of a bachelor’s or 

equivalent is not the usual requirement 

for the position.’’

AILA’s comments indicate a 

misunderstanding of how the list of 

occupations will be applied and include 

a suggestion for defining a professional 

occupation we do not have any way to 

77346 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

administer. The list of occupations on 

Appendix A is a list of occupations for 

which a bachelor’s or higher degree is 

the usual requirement for entry into the 

occupation. The fact the alien does not 

hold a bachelor’s degree has no bearing 

on the recruitment regimen to be 

followed by employers. The primary 

purpose of the list of occupations is to 

provide employers with the necessary 

information to determine whether to 

recruit under the standards provided in 

the regulations for professional 

occupations or for nonprofessional 

occupations. 

Publishing a list of occupations we 

consider appropriate for recruiting 

under the standards for professional 

occupations provides employers a 

degree of certainty they would not have 

if we adopted the proposal advanced by 

AILA. They proposed to simply define 

the terms professional and 

nonprofessional and allow employers to 

seek to demonstrate the position for 

which certification is sought meets the 

regulatory definition of professional or 

nonprofessional and therefore the 

employer has chosen the proper 

recruitment regimen for that position. 

Certainty is desirable as employers are 

required to recruit before they file an 

Application for Alien Employment 

Certification. If the occupation involved 

in the application is listed on Appendix 

A, the employer simply follows the 

recruitment requirements for 

professional occupations at 

§ 656.17(e)(1). For all other occupations 

employers can simply recruit under the 

requirements for nonprofessional 

occupations at § 656.17(e)(2). 

Although the occupation involved in 

a labor certification application may be 

a nonprofessional occupation, the 

regulations do not prohibit employers 

from conducting more recruitment than 

is specified for such occupations. 

Employers that conduct more 

recruitment than is required will not 

have their applications denied for that 

reason. Employers filing applications 

involving nonprofessional occupations 

are free to recruit under the 

requirements for professional 

occupations if they believe by so doing 

it will yield more applications from 

willing, able, and qualified U.S. 

workers. 

With respect to the definition of 

professional occupation suggested by 

AILA, we do not have any standards or 

information that would allow us to 

make the equivalency determination 

called for under the definition suggested 

by AILA. We have never determined in 

administering the permanent labor 

certification program what work 

experience or combination of work 

experience and education is equivalent 

to a bachelor’s or higher degree. 

(2) Presumptions and Preferences 

AILA also opposed the publication of 

the Appendix A listing of occupations, 

whether it was codified or not, because 

publishing such a list immediately 

creates a presumption that the listed 

occupations are the only occupations 

that the CO should consider as 

‘‘professional.’’ AILA noted several 

‘‘professional occupations’’ that may 

well require bachelor’s degrees or 

equivalent experience as a minimum 

requirement, such as highly-trained 

gourmet chefs, hotel managers, and 

graphic artists, are not on the list at all. 

Last, AILA was concerned the list of 

occupations would be used by DHS for 

the purpose of classifying occupations 

into preference categories. 

In our view, the only presumption the 

list of occupations should create is that 

if the occupation involved in the 

application is on the list of occupations 

in Appendix A, employers must follow 

the recruitment regiment for 

professional occupations at § 656.17(e) 

of this final rule. On the other hand, if 

the occupation is not on the list in 

Appendix A, the employer is free to use 

the recruitment regimen for professional 

occupations if it believes it is likely to 

bring more responses from, able, willing 

and qualified U.S. workers than would 

the recruitment regiment for 

nonprofessional occupations. 

We believe AILA overstates the 

possibility DHS will use the 

occupations listed on Schedule A for 

the purpose of classifying positions into 

preference categories. Rather, we have 

every indication the DHS will continue 

to make preference classifications 

according to the job requirements that 

have been entered on the application for 

the certified job opportunity. Employers 

will still be free to provide supporting 

documentation to the DHS during the 

petition process, as they do now, to 

demonstrate the alien’s work experience 

is equivalent to a bachelor’s or higher 

degree if they have specified such on 

the Application for Permanent 

Employment Certification. We also note 

this list is not intended to be used to 

qualify an alien for purposes of 

eligibility under the H–1B and H–1B1 

program. It should also be noted the list 

of occupations is not part of the 

Application for Permanent Employment 

Certification (Form 9089).

With respect to the several 

occupations noted by AILA that may 

well require a bachelor’s degree or 

equivalent experience, it should be 

recognized the list is based on work 

done by the Bureau of Labor Statistics 

(BLS) to describe the educational 

requirements of occupations that appear 

in the Occupational Outlook Handbook. 

In an attempt to improve the 

classification system used to describe 

the educational requirements of 

occupations, the BLS conducted an 

extensive analysis of the education and 

training required of all 513 occupations 

in the national-industry matrix for 

which employment projections are 

developed by BLS, not just the 250 

occupations covered in the 

Occupational Outlook Handbook As 

stated in Chapter 1 of the 1996 edition 

of Occupational Projections and 

Training Data:

The task proved difficult for several 

reasons, but principally because for most 

occupations there is more than one way to 

qualify for a job. For example, registered 

nurses may obtain their training in bachelor’s 

degree or hospital diploma programs. The 

challenge was to determine the training 

category that best reflects the typical 

conditions and the preference of most 

employers.

We are not aware of a more 

comprehensive data base of occupations 

that require a bachelor’s or higher 

degree as an entry requirement than the 

one used to develop the list of 

occupations in Appendix A. The NPRM 

published May 6, 2002, at 57 FR 30471, 

provides background on how the list 

was developed. (See also Occupational 

Outlook Quarterly, Winter 1995–96, 

Volume 39, Number 4.) Additional 

information about the occupations, 

including their definitions, can also be 

obtained from O*Net online at http://

onetcenter.org.

(3) Recruiting and Advertising 

Requirements 

AILA and at least one other 

commenter were concerned that the 

designation of an occupation as 

professional or nonprofessional would 

restrict the ability of the employer to 

identify specific education and 

experience requirements when 

completing the Application for 

Permanent Employment Certification

(Form ETA 9089). 

The fact an occupation involved in a 

labor certification application is listed 

on Appendix A should have no bearing 

on the minimum job requirements 

employers specify for the job 

opportunity. The job requirements listed 

on the application form will be 

determined in accordance with sections 

656.17(h) and (i) of the final rule that 

sets forth the standards for determining 

the appropriate requirements for a job 

opportunity. It should also be noted the 

final rule, unlike the proposed rule, 

provides standards for the use of 

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77347

‘‘business necessity,’’ alternative 

requirements, and when experience 

gained with the employer may be used 

as qualifying experience. Consequently, 

the final rule does not contain a 

provision, as was proposed in the 

NPRM, that a job requirement for a 

bachelor’s or higher degree does not 

have to be justified if: 

• The occupation involved in the 

employer’s application is on a list of 

occupations from ETA for which a 

bachelor’s or higher degree is the 

normal entry requirement for the 

occupation; and 

• The education and training 

requirements for the employer’s job 

opportunity is consistent with the 

education and training required for the 

occupation involved in the employer’s 

application. 

5. Required Advertisement Contents

Under the proposed rule, employers 

were required to place advertisements 

that apprise U.S. workers of the job 

opportunity, include a description of 

the geographic area of employment and 

any travel requirements, and the offered 

rate of pay. The advertisement must also 

include the name of the employer and 

direct applicants to apply to the 

employer. The proposed rule was 

drafted to ensure employers conduct an 

adequate test of the labor market and 

document that qualified U.S. workers 

are unavailable for the job opportunity. 

We received comments from more 

than 30 individuals and organizations 

addressing the proposed language of the 

advertisement. Most of the commenters 

objected to the advertising contents as 

proposed in the regulation. Comments 

were also submitted by SWAs and FAIR, 

which generally supported the proposed 

requirements for advertisements. 

a. Level of Specificity 

The most common objection to the 

proposed rule was that it requires too 

much detail in the print advertisements. 

Many commenters echoed AILA’s 

arguments that employers rarely place 

advertisements that contain a full job 

description, the employer’s name, and 

the offered salary, but instead place 

general, less-detailed job search 

advertisements. AILA further 

questioned whether we had any proof 

that this level of detail in 

advertisements has been found to be 

more effective than employers’ standard 

practices in recruiting U.S. workers. 

One law firm commented their 

experience has been that advertisements 

with long, detailed job descriptions are 

seen as legal notices rather than as real 

advertisements, leading potential job 

applicants to ignore these detailed 

advertisements. Another commenter 

voiced a similar opinion, claiming 

advertisements designed to satisfy labor 

certification requirements tell the reader 

the position is not really available. 

Instead of a detailed job advertisement, 

several commenters suggested 

permitting the use of large catch-all 

advertisements that cover many 

occupations but do not include much 

detail regarding each job opportunity. 

Because many employers already place 

these types of advertisements, 

commenters felt our acceptance of them 

as qualifying recruitments would allow 

employers to use pre-existing 

advertisements that encompass the 

employer’s past recruiting efforts. AILA, 

as well as several individual attorneys, 

commented that general job 

advertisements will attract more 

applicants than job-specific, detailed 

advertisements. Employers have used 

these types of advertisements for 

applications under the RIR process, and 

many commenters objected that the 

proposed regulation would make the 

use of this format impossible. 

In contrast to the commenters who 

criticized the proposed regulation as 

requiring too much specificity in the 

advertisements, a number of 

commenters expressed concerns that the 

regulation’s language was too vague, 

and employers would not know what 

information must be included in the 

advertisements. Several commenters felt 

the regulation’s use of the term 

‘‘apprise’’ was ambiguous and could 

produce confusion among employers. 

One commenter suggested the proposed 

regulation’s language be changed to 

reflect that statement of the job title 

alone is enough, so long as the job title 

provides enough information to clearly 

identify the job opportunity. Another 

commenter inquired whether an 

employer’s recruitment advertisements 

have to be exact matches with regard to 

content and salary, or whether they 

need only match the general terms and 

conditions of the sponsored position. 

AILA opined that the regulation’s 

requirement that the advertisement 

‘‘describe the vacancy sufficient enough 

to apprise U.S. workers of the job 

opportunity’’ was too subjective, and 

proposed an alternative wording of 

‘‘provide the occupation, job title, or a 

description of the position for which 

certification is sought.’’

We believe the proposed regulatory 

language gives employers flexibility to 

draft appropriate advertisements that 

comply, and that lengthy, detailed 

advertisements are not required by the 

regulation. The regulation does not 

require employers to run advertisements 

enumerating every job duty, job 

requirement, and condition of 

employment; rather, employers need 

only apprise applicants of the job 

opportunity. As long as the employer 

can demonstrate a logical nexus 

between the advertisement and the 

position listed on the employer’s 

application, the employer will meet the 

requirement of apprising applicants of 

the job opportunity. An advertisement 

that includes a descriptive job title, the 

name of the employer, and the means to 

contact the employer might be sufficient 

to apprise potentially qualified 

applicants of the job opportunity. 

Employers need not specify the job site, 

unless the job site is unclear; for 

example, if applicants must respond to 

a location other than the job site (e.g., 

company headquarters in another state) 

or if the employer has multiple job sites. 

If an employer wishes to include 

additional information about the job 

opportunity, such as the minimum 

education and experience requirements 

or specific job duties, the employer may 

do so, provided these requirements also 

appear on the ETA Form 9089.

Employers should note, however, that 

while they will have the option to place 

broadly written advertisements with few 

details regarding job duties and 

requirements, employers must prepare a 

recruitment report that addresses all 

minimally qualified applicants for the 

job opportunity. If an employer places a 

generic advertisement, the employer 

may receive a large volume of 

applicants, all of whom must be 

addressed in the recruitment report. 

Employers placing general 

advertisements may wish to include a 

job identification code or other 

information to assist the employer in 

tracking applicants to the job 

opportunity. 

b. Advertisement Cost 

Several commenters objected to the 

requirements for the advertisements on 

the basis of cost, and disagreed with our 

cost estimate of $500 to place an 

advertisement that would fulfill the 

regulation’s requirements. AILA 

commented that suitable advertisements 

can easily cost over $1,500 each, and 

would be a significant economic burden 

for employers. A medical research 

center commented it has limited funds 

for advertising, and requiring long 

advertisements will only benefit 

publications, not find more qualified 

workers. 

We believe the costs of the mandatory 

advertisement do not constitute an 

unreasonable expense. The current 

regulations already require employers to 

place advertisements at the employer’s 

expense, whether the employer 

77348 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

conducts recruitment under the 

auspices of the SWA, or whether the 

employer submits its application under 

the RIR process. While Sunday 

advertising rates are generally higher 

than rates on other days of the week, the 

employer may publish a shorter 

advertisement under this final rule than 

is required under the current system. 

Employers also are only required to 

place two 1-day advertisements, unlike 

the current system’s requirement of a 3-

day placement. A representative from 

DOL contacted major newspapers in 

various U.S. cities and inquired about 

advertising rates for Sunday and 

midweek advertisements. Estimated 

costs for placing two 10-line Sunday 

advertisements in these papers ranged 

from $400 to $1,100, whereas a 3-day 

midweek advertisement of the same 

length would cost between $330 and 

$1,100. The Sunday advertisement costs 

do not appear to be as high as claimed 

by the commenters. Further, our 

program experience is that most 3-day 

advertisements under the current 

system are longer than 10 lines, 

indicating that the two Sunday 

advertisements will cost less than the 3-

day advertisement requirement under 

the current regulations. 

c. Wage Offer in the Advertisement 

The vast majority of commenters 

objected to the inclusion of the wage in 

the print advertisement. Many 

contended few real-world employment 

advertisements include a wage, 

particularly for professionals and 

executives. These commenters noted if 

a salary is included in an advertisement, 

it is typically for a nonprofessional 

position and is listed as an hourly 

amount. 

AILA strongly opposed any inclusion 

of the rate of pay in the advertisement, 

but proposed if the wage requirement is 

retained, we allow employers to insert 

a pay range in the advertisement, 

provided the bottom of the range is no 

less than the prevailing wage rate. A 

number of universities opposed 

inclusion of the wage, as their normal 

recruitment efforts often do not include 

the salary. These commenters noted if 

the employer wishes to sponsor a 

foreign worker immediately following 

the initial recruitment, the employer 

would not be able to use the 

advertisements from the original 

competitive recruitment, as those 

advertisements would not include the 

wage. The universities contended that 

requiring a second round of 

advertisements merely to include the 

wage would appear to be punitive. A 

few commenters noted the wage 

requirement could create a burden for 

employers if it is determined the 

prevailing wage rate used in the 

advertisement was incorrect and the 

employer must readvertise with the 

correct prevailing wage rate. One 

attorney addressed the issue of 

confidentiality of salaries, which may 

vary among the workers in the same 

position in the same department within 

the same organization; salary is often 

discussed last in the interview process 

and is subject to negotiation. This 

commenter felt requiring employers to 

post the offered salary in the 

advertisement was an unreasonable 

deviation from the standard practice of 

professional recruitment. 

After review and consideration of 

both the comments and our program 

experience reviewing employment 

advertisements, we have revised this 

final rule to eliminate the requirement 

that the wage offer must be included in 

the advertisement. Lengthy program 

experience reviewing employment 

advertisements has indicated that most 

employment advertisements do not 

include a wage offer. If an employer 

chooses to include the wage in the 

advertisement, the employer may do so; 

however, inclusion of the wage is not 

mandatory. If the employer does include 

a wage in the advertisement, the wage 

rate must be equal to the prevailing 

wage rate or higher. Regarding wage 

ranges, we have not modified the 

regulation to specifically permit wage 

ranges; however, consistent with our 

longstanding policy, the employer may 

advertise with a wage range as long as 

the bottom of the range is no less than 

the prevailing wage rate.

d. Employer’s Name in the 

Advertisement 

Commenters also discussed the 

inclusion of the employer’s name in the 

advertisement. A few commenters 

claimed requiring employers to include 

their name on advertisements would 

conflict with standard practice in many 

industries, and could lead to disclosure 

of confidential company information. 

AILA asserted in certain industries, 

such as advertising agencies and 

investment banks, it is routine for 

employers to place advertisements that 

do not include the employer’s name. 

AILA suggested as long as the industry, 

place of employment, and type of 

position is identified, the employer 

name need not be included in the 

advertisement. 

FAIR expressed strong support for 

including the employer’s name in the 

advertisement, asserting most U.S. 

workers recognize advertisements 

naming the employer are more likely to 

represent bona fide openings or 

vacancies, as opposed to employment 

advertisements placed for other 

purposes, such as to test wage rates or 

identify competitors’ key staff. Several 

SWAs supported inclusion of the 

employer’s name in the advertisement. 

Despite the objections of some 

commenters, the employer’s name must 

appear in the advertisement. Review of 

employment advertisements clearly 

indicates the vast majority of these 

advertisements include the employer’s 

name. The employer’s name allows 

potential applicants to identify the 

employer, and applicants will be able to 

better determine if they wish to apply 

for the advertised position. Applicants 

also may be unwilling to submit 

r ́esum ́ es to a blind advertisement, as 

they can not tell who will receive their 

r ́esum ́ e. Requiring the employer’s name 

in the advertisement also allows us to 

match the employer’s advertisement to 

the sponsored job opportunity in the 

event of an audit. We have concluded 

these benefits outweigh confidentiality 

concerns of employers. In addition, we 

note employers are required by statute 

to provide notice that the employer is 

seeking a labor certification for the job 

opportunity, making it unlikely any of 

the job information is in fact 

confidential in nature. See 8 U.S.C. 1182 

note. 

e. Placement of Advertisement in 

Newspaper 

One commenter recommended the 

regulation contain language clarifying 

where in the classified advertisements 

the advertisement must be placed, to 

avoid the problem of advertisements 

being ‘‘buried’’ under an inappropriate 

heading or job title. This commenter 

noted if an employer places a job 

advertisement under the wrong keyword 

or heading, potentially qualified U.S. 

workers may never see the employer’s 

advertisement. The commenter 

suggested the regulation be amended to 

add a requirement that ‘‘the 

advertisement must be placed where 

advertisements for the same type of 

occupation are normally located.’’

We have concluded a specific 

prohibition on buried advertisements 

need not be included in this final rule. 

Employers are still required to recruit in 

good faith and placement of the 

employer’s advertisement under an 

inappropriate heading or keyword 

would be considered a failure to make 

good-faith efforts to recruit U.S. 

workers. See H.C. LaMarche Enterprises, 

Inc., (87–INA–607, October 27, 1988)(en 

banc), Wailua Associates, (88–INA–533, 

June 14, 1989), Quality Rebuilders 

Corporation, (93–INA–144, June 28, 

1994). If an application is selected for 

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77349

audit, we will review the employer’s 

recruitment effort, and if an employer’s 

advertisement were placed under a 

clearly inappropriate keyword or in the 

wrong section of the classifieds (such as 

under ‘‘legal notices,’’ rather than 

‘‘employment opportunities’’ or ‘‘help 

wanted’’), we would conclude the 

employer’s recruitment was not done in 

good faith and either deny the 

application or direct the employer to 

complete additional recruitment under 

our supervision. 

f. Inclusion of Physical Address in the 

Advertisement 

An SWA commenter recommended 

advertisements be required to include 

the employer’s physical address, in 

addition to the employer’s name. AILA 

questioned the regulation’s requirement 

that applicants be directed to report to 

or send r ́esum ́ es to the employer. AILA 

proposed applicants be directed to 

report or write to a place, post office 

box, or e-mail location, and this site 

need not be the employer’s, provided 

the geographic location of the employer 

is identified. 

As the name of the employer will 

appear in the advertisement, we see no 

need to require the employer’s physical 

address in the advertisement. Employers 

may designate a central office or post 

office box to receive r ́esum ́ es from 

applicants, provided the advertisement 

makes clear where the work will be 

performed. 

g. Inclusion of Posting Requirements in 

One Advertisement 

Another SWA commenter proposed at 

least one of the mandatory 

advertisements include the language of 

the posted notice requirements at 

§ 656.10(d) with respect to furnishing of 

documentary evidence bearing on the 

application. The commenter suggested 

this would provide an opportunity for 

interested U.S. workers to provide 

comments or complaints to the DOL, 

and would balance employers’ bias 

towards the sponsored foreign worker. 

This recommendation is inconsistent 

with this final rule’s goal of using the 

advertisement for recruitment of 

potentially qualified U.S. workers. 

Potential job applicants might see the 

advertisement not as a job opportunity, 

but as a legal or information notice for 

the employer, and would be 

discouraged from applying to the 

advertisement. Also, a number of other 

commenters noted advertisements that 

were clearly for labor certification 

purposes drew little or no applicants 

compared to non-labor certification 

advertisements. 

6. Recruitment Report 

The final rule continues to provide for 

pre-filing recruitment, and requires 

employers to prepare a recruitment 

report that must be submitted to the CO 

if requested in an audit or otherwise. 

The employer’s recruitment report must 

describe the recruitment steps 

undertaken and the results achieved, the 

number of hires, and, if applicable, the 

number of U.S. workers rejected, 

summarized by the lawful job-related 

reasons for such rejections. After 

reviewing the employer’s recruitment 

report, the CO may request the r ́esum ́ es 

or applications of the U.S. workers 

sorted by the reasons they were rejected. 

We received comments from 40 

individuals and organizations about this 

section of the proposed regulations. 

a. Concerns About Preparing 

Recruitment Report

Several employers and attorneys and 

organizations representing employers 

submitted comments expressing 

concerns about the feasibility of large 

companies tracking recruitment results 

with the level of detail required by the 

proposed regulation. These commenters 

recommended employers be allowed to 

submit an RIR-style recruitment report 

that would discuss the employer’s 

recruitment in general terms. 

ACIP claimed the administrative 

burden of tracking individual job 

applications against specific positions 

would be overly burdensome on the 

employer, and recommended employers 

instead be allowed to submit a summary 

of the employer’s overall recruitment 

results. A high-tech company echoed 

these comments, and requested the rule 

be clarified to state that employers need 

not report on every re ́sume ́ received and 

need not track re ́sume ́s to specific 

recruitment sources. 

AILA asserted the proposed 

recruitment report’s one-job-at-a-time 

approach is far removed from the 

business reality of modern businesses, 

and the proposed rule fails to take into 

account the added expense for 

employers to assess job applicants in 

this fashion. AILA favored adoption of 

an RIR-style recruitment report, 

whereby an employer would report the 

number of openings for the occupation 

at the beginning and end of the 

recruitment report, the number of 

re ́sume ́s received, the number of 

applicants interviewed, and the number 

of hires by the employer for the 

occupation in the same period. AILA 

further recommended the level of detail 

in the employer’s recruitment report 

should depend on whether the 

employer has recruited for an individual 

job or recruited for multiple open 

positions, asserting employers with 

multiple openings should not have to 

match every re ́sume ́ received to an 

individual job and track its outcome. 

AILA asserted it was burdensome to 

require an employer who is constantly 

recruiting and filing positions to have to 

summarize the lawful job-related 

reasons for rejecting each applicant. 

In contrast to the recommendations 

from AILA and ACIP for less-detailed 

recruitment reports, a union commenter 

recommended employers be required to 

submit the recruitment report and 

copies of applicants’ re ́sume ́s when the 

application is filed with DOL. FAIR 

asserted the proposed summary 

recruitment report fails to provide 

minimum adequate protection to U.S. 

worker applicants, who could not 

determine from the report if they were 

rejected for legitimate reasons. FAIR 

proposed employers be required to 

provide the summary recruitment report 

to all applicants, with a notice 

describing how the applicant could file 

an appeal to the CO. FAIR also 

recommended the summary recruitment 

report be subject to the same posting 

requirements of 20 CFR 656.10(d), so 

other U.S. workers at the employer’s job 

location are informed about the results 

of the recruitment process. 

A SWA commenter praised the 

proposed content for the recruitment 

report, noting under the current RIR 

process, many large employers avoid 

providing specific information about 

numbers of applicants and the 

employer’s reasons for rejecting U.S. 

workers who apply. This commenter 

stated large employers claim they have 

no way to extract position-specific 

information, because they accumulate 

re ́sume ́s from all around the country. 

The commenter recommended the rule 

be amended to require applicants to 

mail their re ́sume ́s directly to the 

employer’s job site, rather than to a 

national location, or require employers 

to include a job identification code with 

each advertisement, to ensure the 

employer can match applicants to each 

job opportunity. This commenter 

concluded without some type of jobidentification system, national 

employers will make little effort to 

prepare a breakdown of recruitment 

results by state and job. Another SWA 

commenter inquired how the 

employer’s recruitment report would 

incorporate the results of the job order. 

The commenter asked if SWAs will be 

required to provide the employer with 

a copy of the job order as well as a list 

of referrals. 

The employer has always been 

required to document that U.S. workers 

77350 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

are unavailable for a sponsored job 

opportunity. This outcome is compelled 

by the statutory requirement that the 

Secretary of Labor certify that qualified 

U.S. workers are unavailable for the job 

opportunity. Each application is for a 

single, specific job opportunity, not for 

general job opportunities with the 

employer. Without a nexus between the 

recruitment report and the application, 

the Secretary is unable to fulfill the 

statutory obligation to certify that 

qualified U.S. workers are unavailable. 

While it is undoubtedly easier for 

employers to prepare a general 

recruitment report that does not track 

every applicant to a specific position, 

this type of report is useless for 

determining whether the employer 

rejected qualified U.S. workers in favor 

of the sponsored foreign worker. 

We note most of the objections to the 

recruitment report are based on a 

comparison of the proposed rule to the 

type of recruitment report we have 

accepted under the RIR process. RIR 

processing rests on a determination 

there is little or no availability of U.S. 

workers in an occupation; however, the 

new system does not contemplate any 

such front-end determination being 

made. All applications, including ones 

for which there may be considerable 

U.S. worker availability, are treated the 

same. 

In response to numerous comments 

from employers who receive a large 

volume of unsolicited resumes, we are 

not including in the final rule the 

requirement that the recruitment report 

identify the individual U.S. workers 

who applied for the job opportunity. 

However, the employer retains the 

responsibility for proving that U.S. 

workers are not available for the job 

opportunity. The recruitment report 

does not impose a new requirement, 

only a new means by which recruitment 

information must be submitted when 

and if we request it. For those 

employers who run generic help wanted 

advertisements and are concerned about 

tracking applicants, employers may run 

advertisements more closely matched to 

the relevant labor certification 

application or include a job code that 

the employer may use to track responses 

to the advertisement. 

With regard to the recommendations 

that employers submit copies of the 

recruitment report and re ́sume ́s when 

the application is filed, this proposal is 

not compatible with the attestation 

system we have adopted. We believe we 

can appropriately obtain these materials 

through the use of the audit letter or 

other request from the CO. Further, 

because an employer’s failure to submit 

the recruitment report in response to the 

audit letter will result in the denial of 

the employer’s application, and may 

result in the employer being required to 

undergo supervised recruitment for up 

to 2 years, we believe employers will 

have a strong incentive to prepare the 

recruitment report and promptly submit 

it if requested during an audit. The 

employer must provide lawful jobrelated reasons for rejecting each 

applicant as part of the recruitment 

report, which addresses the AFL–CIO’s 

comment that the employer provide a 

rationale for not hiring U.S. workers 

who applied for the job opportunity.

FAIR’s recommendations are so novel 

they would require another opportunity 

for notice and comment before any such 

rules could be imposed. Moreover, these 

rules appear to be inconsistent with 

real-world recruitment practices, in 

which most employers only tell each 

applicant the result of his or her 

individual application. Providing 

applicants with a report on the 

decisions made on all applicants to a job 

opportunity would appear to be 

problematic due to confidentiality 

issues. 

b. Job Qualification Through Reasonable 

Period of On-the-Job Training 

A few commenters expressed support 

for the provision in § 656.17(f)(2) of the 

NPRM, providing that a U.S. worker is 

able and qualified for the job 

opportunity if the worker can acquire 

the skills necessary to perform the 

duties involved in the occupation 

during a reasonable period of on-the-job 

training, as a sensible means to protect 

the interests of U.S. workers. Two 

SWAs, an attorney, and FAIR supported 

designating a U.S. worker as qualified if 

the necessary skills can be acquired 

during a reasonable period of on-the-job 

training. FAIR additionally 

recommended if an occupation has an 

SVP of 1 year or less, that 1 year be 

presumptively considered a reasonable 

period for training, and thus render the 

labor certification application ineligible 

for approval if any U.S. workers apply. 

A SWA commenter additionally noted 

many employers will recognize an alien 

as having the functional equivalent of a 

college degree, based on a combination 

of education, training, and experience. 

This commenter felt employers rarely 

apply this educational equivalency 

standard to U.S. workers who apply for 

the job opportunity, and instead 

automatically eliminate workers from 

consideration if their re ́sume ́s do not list 

a college degree. The commenter 

suggested we address this issue when 

employers reject U.S. workers who lack 

a college degree. 

The overwhelming majority of 

commenters objected to the proposed 

language in § 656.17(f)(2) of the NPRM. 

AILA expressed strong opposition to 

this proposed language, claiming this 

rule was derived from DOL’s suspicion 

that employers inflate job requirements 

when filing labor certifications. 

AILA further asserted the proposed 

rule mandates that every U.S. worker is 

potentially qualified for a position even 

if he or she does not meet every 

minimum requirement, resulting in an 

over-broad and unmanageable definition 

of the term ‘‘qualified’’ U.S. worker. 

AILA claimed the proposed rule 

attempts to reverse the long-accepted 

rule that an employer may reject a U.S. 

worker who lacks a stipulated minimum 

requirement for the position. This 

would result in a subjective and 

unmanageable standard of labor 

certification adjudications and would 

encourage a substantial volume of 

litigation over the issue of whether 

training is feasible. 

Requiring employers to consider as 

qualified U.S. workers who can learn 

the necessary skills in a reasonable 

period of on-the-job-training is an 

important corollary to the long standing 

regulation, at § 656.24(b)(ii), that 

provides U.S. workers will be deemed 

qualified if ‘‘the worker, by education, 

training, experience, or a combination 

thereof, is able to perform in the 

normally accepted manner the duties 

involved in the occupation as 

customarily performed by other U.S. 

workers similarly employed * * *.’’

This corollary has been affirmed at the 

circuit court level in Ashbrook-Simon 

Hartley v. McLaughlin, 863 F.2d 410 

(5th Cir. 1989), which stated DOL ‘‘can 

discount * * * job requirements listed 

by the employer which constitute skills 

* * * which can be acquired during a 

reasonable period of on-the job 

training.’’

Most of the commenters erroneously 

read the proposed rule as stating a U.S. 

worker who failed to meet the 

employer’s stated minimum 

requirements, such as educational 

background, training, or years of 

employment experience, must be 

deemed qualified. Under the final rule, 

as in the current regulations, an 

applicant’s failure to meet the 

employer’s stated minimum 

requirements is a lawful reason for 

rejection; however, if a worker lacks a 

skill that may be acquired during a 

reasonable period of on-the-job training, 

the lack of that skill is not a lawful basis 

for rejecting an otherwise qualified 

worker. This final rule does not specify 

what constitutes a reasonable period, as 

it will vary by occupation, industry, and 

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77351

job opportunity. The COs are 

experienced in assessing the 

qualifications of applicants, and we do 

not believe this rule will present any 

difficulty. We disagree with the 

comments that suggested the rule 

creates disparate hiring standards for 

U.S. workers and foreign nationals. 

Many employers hire applicants with 

the expectation the applicant will have 

to undergo some amount of on-the-job 

training. 

Regarding educational equivalencies, 

we lack adequate information to 

determine whether a given worker’s 

combination of education, training and 

experience is the functional equivalent 

of a college degree. While we are aware 

some employers will accept a specified 

degree or its equivalent, we do not see 

a need to add a requirement that 

employers consider whether a U.S. 

worker’s experience, training and 

education is the equivalent of a required 

degree.

7. Job Requirements 

a. Business Necessity Standard and Job 

Duties 

The NPRM proposed retention of the 

current standard that the employer’s job 

requirements must be those normally 

required for jobs in the United States 

and the employer’s job requirements 

must not exceed the number of months 

or years of training, education and/or 

experience defined for the SVP level 

assigned to the occupation as shown in 

the O*NET. The NPRM also sought to 

modify the current regulations by 

eliminating the use of business 

necessity to justify requirements not 

normal for the occupation. The NPRM 

instead proposed that job requirements 

other than the number of months or 

years of training, education and/or 

experience in the occupation would not 

be permitted unless it could be shown 

that the employer employed a U.S. 

worker to perform the job opportunity 

with the special requirements within 2 

years of the filing date of the 

application, or the special requirements 

are normal to the occupation. 

We received over 50 comments on the 

proposed elimination of business 

necessity. Most of the commenters, 

including AILA and ACIP, were 

opposed to the proposal. The most 

common objection was the elimination 

of business necessity would hurt the 

economy because the failure to staff 

positions with qualified workers would 

prevent employers from meeting 

marketplace demands and put 

employers at a competitive disadvantage 

by causing them to lose out to foreign 

competitors. One commenter observed 

the market often demands that new 

positions be formed or old positions be 

reformulated, and U.S. businesses 

should not be hindered by limiting new 

positions to ones previously held by a 

U.S. worker. Another commenter, a 

high-tech employer, viewed the 

proposal as effectively blocking all 

emerging technology and evolving 

positions that did not exist previously. 

A few commenters observed that 

requiring an employer to show it has 

previously employed a U.S. worker in 

the position would hurt new companies 

because these companies may not have 

had a position open prior to the current 

position. Other commenters saw the 

proposal to eliminate business necessity 

as especially harmful to small 

businesses that may not have enough 

work to support more than one person 

in the position. Some universities noted 

academic research and original 

publication would be harmed because a 

degree and a designated number of years 

of experience do not capture the full 

complement of necessary qualifications. 

AILA and several others commented 

there was no factual basis for our 

rationale for eliminating business 

necessity. AILA also commented the 

elimination of business necessity would 

unjustifiably renounce the legacy of 

BALCA and the Federal courts, and the 

proposal ignores a quarter century of 

cumulative business necessity 

experience. Another commenter noted 

the proposed rule contravened the longheld view that ETA would not impose 

its judgment on business by limiting an 

employer’s actual job requirements for a 

particular position. SHRM observed the 

current regulations, coupled with 

relevant case law, provide U.S. workers 

with ample protection against 

illegitimate job requirements. On the 

other hand, comments by FAIR, a few 

unions, and SWAs were highly 

supportive of the proposal to eliminate 

business necessity, and regarded the 

proposal as a salutary effort to address 

employer abuses in the program. 

We agree with the majority of 

commenters that the business necessity 

standard should be retained in the 

permanent labor certification program. 

For the past 25 years, we have permitted 

employers to use specialized job 

requirements as long as they could 

demonstrate their importance to the 

performance of the job. The 

administrative difficulties associated 

with implementation of the business 

necessity test, although problematic, do 

not form a sufficient basis for depriving 

employers of their ability to address 

legitimate business requirements. While 

we considered trying to develop a 

middle ground between the approach in 

the NPRM and business necessity, 

commenters did not suggest any 

solution nor could we identify a middle 

ground solution. Any alternative to 

business necessity is likely to be equally 

subjective, and business necessity is a 

concept with which we and the 

employer community are familiar. This 

final rule marks a return to the status 

quo by incorporating the standard for 

business necessity adopted by BALCA 

in Information Industries (88–INA–92, 

February 9, 1989) (en banc). This final 

rule provides in § 656.17(h)(1) to 

establish business necessity an 

employer must demonstrate the job 

requirements bear a reasonable 

relationship to the occupation in the 

context of the employer’s business and 

are essential to perform, in a reasonable 

manner, the job duties as described by 

the employer. 

This final rule also clarifies our longheld position that the regulatory 

provisions that deal with unduly 

restrictive requirements and business 

necessity also apply to unduly 

restrictive job duties. It has always been 

our position that applications for labor 

certification may not describe the job 

opportunity in an overly restrictive 

manner, thereby artificially excluding 

U.S. workers who are minimally 

qualified for the position. Such 

restrictions can manifest themselves 

both as demands that applicants satisfy 

unnecessary job requirements or they be 

able to immediately perform every 

potential job duty, however tangential to 

the basic occupation. 

The O*NET job zones will show the 

SVP level assigned to the occupation. 

This final rule provides the job 

opportunity’s duties and requirements, 

unless adequately documented as 

arising from business necessity, must be 

those normally required for the 

occupation and must not exceed the 

SVP level assigned to the occupation as 

shown in the O*NET job zones. While 

O*NET may arguably contain broader 

occupational categories than the DOT, 

COs have traditionally exercised their 

judgment in determining whether the 

job requirements are normally required 

for the occupation involved in the 

employer’s application and in applying 

the SVP to specific case situations, and 

they will continue to make such 

judgments with O*NET. Employers 

should be aware that job duties and 

requirements other than those normal 

for the occupation must be supported by 

evidence of business necessity and such 

evidence will be required in an audit. 

The language in the NPRM about the 

justification of a bachelor’s or higher 

degree has been eliminated in this final 

rule. The inclusion of the business 

77352 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

necessity test, along with the retention 

of our current policies about what is 

normally required for the job in the 

United States, make these provisions 

unnecessary. 

b. Foreign Language Requirement

The NPRM proposed that a foreign 

language requirement must be 

supported by a showing that the foreign 

language was not merely for the 

convenience of the employer or its 

customers, but was required based upon 

the nature of the occupation or the need 

to communicate with a large majority of 

the employer’s customers or contractors. 

The use of the business necessity 

standard for foreign language 

requirements in the current system 

produced a well-understood and 

generally accepted body of case law that 

has been developed over 2 decades 

about when and how language 

requirements can be used. The business 

necessity standards contained in these 

established principles were reflected in 

the proposed rule. Since we are 

retaining the business necessity 

standard in the final rule we have 

modified this final rule in § 656.17(h)(2) 

by simply providing that a foreign 

language cannot be included as a job 

requirement unless it is justified by 

business necessity. 

We received seven comments that 

specifically addressed the proposed rule 

on foreign language requirements. FAIR 

and the AFL–CIO expressed their strong 

support of the proposed rule. The 

majority of commenters (employers and 

attorneys/interest groups representing 

employers), while generally favoring the 

proposal, suggested we expand the rule 

to include other possible business 

justifications for foreign language 

requirements. The most frequently cited 

example was the need to communicate 

with co-workers or subordinates. AILA, 

for example, strongly recommended we 

include the employer’s own employees 

as a potential class of individuals 

necessitating a language requirement, 

noting our recognition of the linguistic 

difficulties of an employer’s contractors, 

but not of the employer’s own staff, 

appeared inexplicable. After careful 

consideration, we have concluded these 

comments have merit. Lastly, we think 

there are working environments where 

safety considerations would support a 

foreign language requirement. In some 

industries and occupations language 

impediments could contribute to 

injuries to workers. Accordingly, this 

final rule adds the need to communicate 

with co-workers or subordinates to the 

ways for justifying business necessity 

for a foreign language requirement. 

Lastly, we think there are working 

environments where safety 

considerations would support a foreign 

language requirement. 

c. Combination Occupations 

The NPRM proposed two changes to 

the current regulations concerning 

combination of duties. First, it proposed 

the term ‘‘combination of occupations’’

replace ‘‘combination of duties’’ because 

most jobs involve a combination of 

duties. Second, it proposed a 

combination of occupations may be 

justified only by a showing of previous 

employment of a U.S. worker within 2 

years of filing and/or that workers 

customarily perform the combination of 

occupations in the area of intended 

employment. Proof of business 

necessity, one of three alternative bases 

to support a combination of duties 

under current regulations, would not 

justify a combination of occupations. 

We received eight comments on the 

proposed rule on combination jobs. Two 

commenters, FAIR and a SWA, 

supported the proposal. The remaining 

commenters were opposed to the 

elimination of business necessity as a 

basis for justifying a combination of 

occupations. These commenters 

maintained the proposed rule would 

harm U.S. businesses by failing to give 

employers needed flexibility to merge 

occupations in a rapidly changing 

technological and global marketplace. 

AILA recommended we restore an 

employer’s ability to set forth unusual 

requirements or combinations of duties 

via attestation subject to later 

verification of business necessity in the 

course of an audit or investigation. 

Another commenter noted the proposed 

rule would hurt small employers 

because many small companies expect 

their employees to ‘‘multi-task,’’ and the 

smaller the company the more likely an 

employee would perform a combination 

of duties. 

After careful evaluation, we have 

determined these concerns are 

addressed by our decision to retain 

business necessity in the permanent 

labor certification program. Therefore, 

this final rule continues the current 

standard in § 656.17(h)(3). Combination 

occupations can be justified in the same 

way as is presently required for a 

combination of duties, i.e., the employer 

must prove it has normally employed 

persons for that combination and/or 

workers customarily perform the 

combination in the area of intended 

employment and/or the combination job 

opportunity is based upon a business 

necessity. 

8. Alternative Experience Requirements 

We received over 35 comments in 

response to the proposal to eliminate 

the use of alternative experience 

requirements as a means of qualifying 

for the employer’s job opportunity. The 

vast majority of commenters were 

opposed to the proposal. These 

commenters noted alternative 

experience and educational 

requirements are a necessary part of 

recruitment and their elimination would 

prevent employers from staffing 

positions in accordance with real-world 

business practices whereby employers 

typically interview job candidates and 

evaluate their skill sets to determine 

whether the candidate can perform the 

job. One commenter observed today’s 

r ́esum ́ es do not list past positions, but 

rather the skills and accomplishments of 

the individual candidate. ACIP 

commented that large employers 

normally use alternative experience or 

educational requirements when hiring 

both foreign nationals and U.S. workers 

because, in their experience, there is 

more than one possible route to gain the 

education and skills needed to perform 

the duties of a position. A university 

and a high-tech company noted 

emerging technology and cutting-edge 

research thrive in an interdisciplinary 

environment where individuals from 

seemingly different backgrounds may 

occupy the same position.

Several commenters observed the 

proposal seemed counter-productive to 

protecting the U.S. labor force. AILA 

and other commenters noted by 

eliminating alternative requirements, 

DOL was actually limiting the pool of 

U.S. workers who may qualify for a 

position. A few commenters, including 

AILA, thought it unfair that the 

proposed rule would prohibit employers 

from considering any alternative 

experience possessed by foreign 

nationals, while at the same time force 

employers to consider an alternate array 

of experience and education possessed 

by U.S. workers, thereby ignoring the 

reality of the international job market. 

Several commenters, including AILA, 

a high-tech employer, and a few 

universities, disagreed with DOL’s 

statement in the NPRM that alternative 

requirements are a phenomenon of 

lesser-skilled positions. Other 

commenters stated the NPRM was 

drawn more broadly than necessary to 

address DOL’s concerns about 

individuals circumventing the Other 

Worker visa quota limits. These 

commenters suggested DOL deal 

directly with the Other Worker problem 

by examining whether an alternative 

requirement was bona fide, reasonable, 

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77353

and/or normal for the occupation and 

not by eliminating alternatives 

altogether. 

An immigration law firm pointed out 

the issue of alternative requirements 

was addressed by BALCA in the Matter 

of Francis Kellogg, (94–INA–465, 

February 2, 1998) (en banc). Kellogg

adopted a reasonable solution that 

required the employer to accept any and 

all experience that would reasonably 

prepare an applicant for the position 

and not permit an employer to accept 

only the specific related experience the 

alien might have, without regard to 

whether the other experience would 

prepare the applicant for the position in 

question. This commenter observed 

DOL has never implemented the 

rationale expressed by BALCA in 

Kellogg on a nationwide basis. 

Six commenters supported the 

elimination of the alternate experience 

requirement. Several SWAs stated that 

alternative experience requirements 

enabled foreign workers to easily qualify 

for available job openings and should be 

eliminated. FAIR commented that 

alternative requirements have almost 

always been used by employers to 

disguise what are really unskilled jobs 

as skilled positions in order to promote 

alien relatives and cronies ahead of lawabiding U.S. applicants. The AFL–CIO 

said alternative requirements allowed 

employers to tailor job requirements to 

the qualifications and experience of the 

foreign worker rather than the 

requirements of the job. 

We are persuaded by the majority of 

commenters that there may be legitimate 

instances when alternative job 

requirements, including experience in a 

related occupation, can and should be 

permitted in the permanent labor 

certification process. However, we do 

not agree that proposed § 656.17(g)(4)’s 

limitations on what an employer may 

require as an alternative experience 

requirement must be consistent with the 

definition of related occupation in 

§ 656.17(j) of the NPRM, because these 

two sections have distinctly different 

purposes. Section 656.17(j), now (k) 

addresses the qualifications of U.S. 

workers laid off by the employerapplicant. Section 656.17(g), now (h), on 

the other hand, addresses the 

qualifications of the alien beneficiary 

and is designed to prevent an employer 

from allowing the alien beneficiary to 

benefit from training and/or experience 

opportunities not offered to U.S. 

workers. 

Under § 656.17(h)(4) of this final rule, 

an employer may specify alternative 

requirements provided the alternative 

requirements meet the criteria set forth 

by BALCA in the Kellogg case. In 

Kellogg, BALCA indicated that 

alternative requirements and primary 

requirements must be substantially 

equivalent to each other with respect to 

whether the applicant can perform the 

proposed job duties in a reasonable 

manner. There may also be other 

equally suitable combinations of 

education, training or experience which 

could qualify an applicant to perform 

the job duties in a reasonable manner, 

but which the employer has not listed 

on the application as acceptable 

alternatives. Therefore, even when the 

employer’s alternative requirements are 

substantially equivalent but the alien 

does not meet the primary job 

requirements and only potentially 

qualifies for the job by virtue of the 

employer’s alternative requirements, the 

alternative requirements will be 

considered unlawfully tailored to the 

alien’s qualifications unless the 

employer has indicated that applicants 

with any suitable combination of 

education, training or experience are 

acceptable.

9. Actual Minimum Requirements 

Under the proposed rule, employers 

would be prohibited without exception 

from requiring any experience gained by 

the alien while working for the 

employer in any capacity, including 

working as a contract employee or for an 

overseas company. 

DOL received over 40 comments on 

the proposal to prohibit any experience 

gained with the employer. The vast 

majority of commenters, including AILA 

and ACIP, were opposed to the 

proposed rule. The objection most 

frequently made was the proposed rule 

would significantly harm American 

businesses and have a chilling effect 

upon U.S. workers and the economy. 

These commenters believed the 

proposed rule would force talented 

foreign nationals to change employment 

because they would be unable to obtain 

permanent residence through their longterm employer. Losing these employees 

after a substantial investment would 

undermine the employer’s competitive 

edge because the employees would 

likely be lost to competing businesses. 

Several commenters specifically stated 

the proposed rule inadvertently 

encourages a system in which only 

entry level or new employees could be 

sponsored for labor certification. One 

university commented the proposal 

would eliminate the ability of colleges 

and universities to retain exemplary 

post-docs, junior researchers, faculty 

members, and other highly skilled 

employees who would end up leaving 

the universities for jobs in industry. 

Another commenter stated the proposed 

rule would in particular penalize large 

medical research centers. 

AILA commented that our rationale 

for the proposed rule lacked supporting 

statistics, citations, or evidence, 

empirical or otherwise. ACIP 

commented that DOL’s justification 

undermined the economic viability of 

American employers who provide the 

jobs. These commenters and others 

recommended the longstanding 

exceptions to the current rule be 

retained. In particular, AILA 

commented that BALCA in Delitizer 

Corp. of Newton (88–INA–482, May 9, 

1990)(en banc) already established a 

mechanism to protect U.S. workers in 

this situation. In Delitizer, BALCA listed 

a number of factors that could be 

analyzed, such as the relative job duties 

and supervisory responsibilities, job 

requirements, and the positions of the 

jobs in the employer’s hierarchy, to 

determine whether the alien’s 

experience with the employer should be 

allowed. Some commenters contended 

that experience gained on the job should 

be allowed when it is infeasible for the 

employer to train a new worker. 

Other commenters objected to the 

inclusion of contract employees within 

the scope of the proposed rule. One 

commenter observed that many U.S. 

companies hire start-up contract 

employees whom they train and who 

grow with the business. One commenter 

stated the inclusion of contract 

employees was difficult to understand 

because contracting employers who 

place contract employees at another 

firm are, by definition, separate 

employers. 

Relatively few commenters supported 

the proposed change. These 

commenters, including FAIR, the AFL–

CIO, and several SWAs, complained 

that U.S. workers had been 

disadvantaged by the current 

regulations because employers are not 

required to recruit for the positions until 

after the aliens received the full benefit 

of employer-provided training and 

experience.

A few commenters proposed DOL 

take a middle position and retain in 

some form the exceptions contained in 

the current regulations. One of these 

commenters suggested experience 

gained on the job should be allowed if 

the alien obtained the experience in a 

materially different position. Another 

commenter suggested an exception be 

made for businesses with 100 or more 

employees. 

a. Dissimilar Jobs 

We have concluded that some 

modification to the proposed rule 

should be made to accommodate the 

77354 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

legitimate interests of the business 

community. The inclusion of exceptions 

to the ban on using experience gained 

on the job in the 1977 regulations 

reflected our view that employers filing 

for labor certification may very well be 

able to show appropriate instances 

when the prohibition should not be 

applied. We agree with the commenters 

that if the jobs are truly distinct, U.S. 

workers are not denied training 

opportunities unfairly gained by foreign 

nationals with the same employer. 

Foreign workers, including those 

working as contractors, are not being 

trained on the job when they are gaining 

experience in a truly different job. 

However, in our experience, the specific 

Delitizer criteria are unnecessarily 

complex and in practice difficult to 

administer. 

In order to reconcile these competing 

considerations, this final rule in 

§ 656.17(i) allows the employer to show 

the alien was hired in or contracted to 

work in a different job for the employer, 

but the employer must prove the job in 

which the alien gained the experience is 

not substantially comparable to the job 

for which certification is being sought. 

A ‘‘substantially comparable’’ job or 

position means a job or position 

requiring performance of the same job 

duties more than 50 percent of the time. 

This requirement can be documented by 

furnishing position descriptions, the 

percentage of time spent on the various 

duties, organization charts, and payroll 

records. 

b. Infeasibility to Train 

With respect to the second exception, 

we note the ‘‘infeasibility to train’’

argument is rarely claimed in practice. 

Consequently, we have concluded the 

reinstatement of this exception in this 

final rule will have little programmatic 

or operational impact, would 

acknowledge the legitimate interests of 

the business community, and would not 

be inconsistent with our longstanding 

interpretation of our statutory mandate. 

c. Definition of Employer 

Concerning the definition of 

‘‘employer,’’ the proposed rule adopted 

the position taken by BALCA in Matter 

of Haden, Inc. (88–INA–245, August 30, 

1998). We proposed that employer be 

defined more broadly to include 

predecessor organizations, successors in 

interest, a parent, branch or subsidiary, 

or affiliate, whether located in the U.S. 

or another country. The comments that 

spoke to this issue were 

overwhelmingly negative, particularly 

with regard to DOL’s intention to 

include overseas employment. One 

commenter characterized the proposed 

change as harsh and inflexible. Other 

commenters pointed out that the broad 

prohibition against experience obtained 

overseas would have a wide-ranging 

negative economic and competitive 

impact. These commenters asserted 

many large companies have a global 

workforce and move talent and 

personnel as necessary, and the 

proposed rule would shut U.S. doors to 

global talent by precluding promotion 

from within the organization. One 

commenter claimed excluding 

experience gained by the alien while 

working for an affiliate company abroad 

would actually harm U.S. workers by 

forcing multinational corporations to 

consolidate research, development, and 

manufacturing jobs overseas, instead of 

transferring these positions to the U.S. 

With regard to the prohibition of 

experience gained with an acquired 

company, a commenter noted in most 

instances there is no relationship 

between the acquiring and acquired 

company; consequently, the alien has 

no expectation that he or she would 

have greater qualifications for the 

eventual job than an employee working 

anywhere else. This commenter also 

observed the proposed rule would 

impede business expansion and that one 

of the most valuable tangible assets of a 

business acquisition is the talent and 

creative energy of the employees in the 

acquired company. One SWA expressed 

concern about the administration of the 

proposal and questioned how DOL 

would be able to track and/or separate 

the different legal relationships 

(predecessor organizations, successors 

in interest, etc.) enumerated in the 

proposed rule. 

There were a few commenters that 

supported the proposed change. FAIR 

commented it is entirely appropriate for 

U.S workers to ‘‘pierce the corporate 

veil’’ in the contemporary workplace 

and commended DOL for adopting the 

Haden standard, which bars permanent 

certification where a position requires 

proprietary training or knowledge that 

only a foreign employee of the employer 

possesses. 

After reviewing the comments, we 

agree the proposed definition of 

employer was too broad. Consequently, 

this final rule in § 656.17(i)(5)(i) has 

been simplified to provide an employer 

is ‘‘an entity with the same Federal 

Employer Identification Number (FEIN), 

provided it meets the definition of an 

employer at § 656.3.’’ The simpler 

definition will be easier to administer 

and strikes an appropriate balance 

between the legitimate interests of the 

U.S. business community and DOL’s 

statutory mandate to protect U.S. 

workers.

10. Layoffs by the Employer 

The proposed rule provided that, if 

there has been a layoff by the employerapplicant in the area of intended 

employment within 6 months of filing 

the application, either in the occupation 

for which certification is sought or in a 

related occupation, the employer must 

document it has notified and considered 

all potentially qualified laid-off U.S. 

workers of the job opportunity involved 

in the application and the results of the 

notification. 

For the purposes of § 656.17(j) in the 

NPRM (§ 656.17(k) of this final rule), a 

‘‘related occupation’’ is any occupation 

that requires workers to perform a 

majority of the essential duties involved 

in the occupation for which certification 

is sought. 

Several commenters had concerns 

about proposed § 656.17(j) and 

discussed issues such as industry and 

statewide layoffs, CO’s knowledge of the 

layoffs, laid off U.S. workers, contract 

employees, and the definitions of 

‘‘related occupation,’’ ‘‘similar jobs,’’

‘‘contract employees,’’ and ‘‘layoffs.’’

a. Industry and Statewide Layoffs 

Two commenters addressed industry 

or statewide layoffs. A SWA prevailing 

wage specialist stated Item 10 of Part IV 

(Recruitment Efforts Information) of the 

ETA Form 9089 implies the layoffs were 

only the employer’s layoffs. One 

commenter questioned how the CO 

would monitor layoffs by other 

employers as well as the employerapplicant’s layoffs. 

Under this final rule, the employerapplicant is required to document it has 

notified and considered only those 

workers it laid off, not those workers 

laid off by other employers. The 

employer must attest on the application 

form to whether it has laid off 

employees in the occupation involved 

in the application in the past 6 months. 

We do not believe it is reasonable to 

place such requirements on employerapplicants with respect to workers laid 

off by other employers in the area of 

intended employment. 

It should be noted that under 

§ 656.21, if the employer is directed to 

complete supervised recruitment, the 

CO may take notice of industry layoffs 

in directing the employer to make 

additional recruitment efforts; however, 

the petitioning employer is not required 

to make attestations about layoffs by 

other employers in the industry or area 

of intended employment. This is 

consistent with our past practices. 

b. Knowledge of Layoffs 

One commenter questioned how the 

CO would know whether there were 

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77355

layoffs if the employer does not inform 

the CO directly. We note the employer 

must attest on the application whether 

it has laid off workers in the occupation 

in the 6 months immediately prior to 

filing the application. Further, our 

program experience has shown that COs 

are able to determine whether an 

employer has laid off workers by relying 

on various sources of information such 

as Worker Adjustment and Retraining 

Notification (WARN) notices, 

newspaper articles, and internet search 

tools. 

c. Laid-off U.S. Workers

One commenter recommended the 

employer be required to document that 

all of its laid-off workers (who are 

actively seeking work) are employed. 

The commenter indicated the minimum 

standard for protection of U.S. workers 

would be to require the employer to 

document that all of its laid-off U.S. 

workers (who are actively seeking work) 

are now employed and working at a 

wage that is equal to or higher than the 

prevailing wage rate on the ETA Form 

9089. 

The final rule requires the employer 

to document only that it notified and 

considered potentially qualified U.S. 

workers. Employers must document 

they offered the position to those laidoff workers who are able, willing, and 

qualified for the job opportunity and the 

results of their consideration of such 

workers. 

Employers are not required to 

document that all of their laid-off 

employees are actively seeking work, or 

have obtained employment at a wage 

that is equal to or higher than the 

prevailing wage on the ETA Form 9089. 

It is not feasible to require an employer 

to document that its laid-off workers are 

currently employed and the wages at 

which the workers are currently 

employed. For example, laid-off staff 

may be unreachable, and may be 

unwilling to cooperate with former 

employers seeking information about 

their current employment or salary. 

d. Contract Workers 

A commenter noted the proposed rule 

provides an opportunity to require that, 

when a consulting firm submits a 

permanent alien labor application, the 

sponsored workers can not be sent to 

firms where they would replace U.S. 

workers. The commenter suggested DOL 

add a section to the rule requiring 

consulting firms to document they are 

not referring workers to a place of 

employment at which U.S. workers have 

been laid off from positions similar to 

the position the foreign worker will 

occupy. 

We are not adding a provision to this 

final rule requiring consulting firms to 

document that they are not referring 

workers to a place of employment at 

which U.S. workers have been laid off 

from similar positions. Although this 

suggestion has merit, we have 

concluded such a marked departure 

from current policy and practice should 

be the subject of another NPRM before 

it is implemented. We will consider it 

in future rulemaking to amend the 

permanent labor certification program. 

It should be noted if the employerapplicant is a consulting firm, it, as 

must any other employer, must attest to 

any layoffs of its staff in the sponsored 

occupation in the 6 months prior to 

filing. We also note contract staff of the 

employer-applicant are not employees, 

and need not be included in any 

assessment of qualifications of laid off 

U.S. workers. 

e. Definition of Related Occupation 

One commenter inquired whether 

§ 656.17(j)(2)’s definition of ‘‘related 

occupation’’ was inconsistent with 

§ 656.17(h)’s ban on experience gained 

with the employer, and suggested DOL 

redefine related occupation to resolve 

this inconsistency. 

AILA objected to the proposed 

definition of related occupation. 

Because the definition includes any 

occupation that requires workers to 

perform a ‘‘majority of the essential 

duties,’’ AILA questioned why an 

employer must consider a worker 

qualified if he or she can only perform 

a majority of essential duties of the 

position offered. AILA contended many 

of the essential skills may constitute less 

than half of the job duties, but are 

required for performing the job. AILA 

stated DOL’s new standard for recruiting 

U.S. workers, including laid off workers, 

renders meaningless the longstanding 

principle that the employer use 

minimum entry requirements on a labor 

certification. 

We do not consider employment in a 

different but related occupation, as 

defined in § 656.17(k), to be inconsistent 

with § 656.17(i)’s limits on experience 

gained with the petitioning employer, as 

these two sections have distinctly 

different purposes. Section 656.17(k) 

addresses the qualifications of U.S. 

workers laid off by the employerapplicant. Section 656.17(i), on the 

other hand, addresses the qualifications 

of the alien beneficiary and is designed 

to prevent an employer from providing 

the alien beneficiary with training 

opportunities not offered to U.S. 

workers. In addition, we note due to the 

changes made to § 656.17(h) and (i) of 

this final rule (§ 656.17(g) and (h) of the 

NPRM), employers may be able to 

specify experience in a related 

occupation as qualifying for the job 

opportunity. See our discussion of 

alternate experience requirements and 

actual minimum requirements above. 

With regard to the definition of 

related occupation, some commenters 

erroneously believed DOL would deem 

any laid-off employee in a related 

occupation, who can perform the 

majority of the job duties, to be 

qualified. The regulation does not state 

workers in a related occupation are 

qualified for the job opportunity, only 

the employer must notify those workers 

and consider whether they are qualified. 

Similar to the determinations that 

have to be made under §§ 656.17(g) and 

656.24(a)(2)(i), a U.S. worker will be 

deemed qualified only if the worker, by 

education, training, experience, or a 

combination thereof, is able to perform 

in the normally accepted manner the 

duties involved in the occupation as 

customarily performed by other U.S. 

workers similarly employed; or if the 

U.S. worker can acquire the skills 

necessary to perform the duties 

involved in the occupation during a 

reasonable period of on-the-job training. 

If audited, an employer may be required 

to document the lawful job-related 

reasons for not hiring U.S. workers laid 

off in a related occupation for the job 

opportunity for which certification is 

sought. 

f. Definition of Layoff 

One commenter suggested DOL 

expand the term ‘‘layoff’’ to include 

layoff or reduction-in-force or 

downsizing. The commenter warned 

employers might attest that the term 

layoff does not apply to their personnel 

actions, for example, if workers 

voluntarily resign and the company 

reorganizes so the job no longer exists. 

We have modified this final rule to 

clearly define, for purposes of 

§ 656.17(k), a layoff is any involuntary 

separation of one or more workers 

without cause or prejudice. This 

definition includes, but is not limited 

to, personnel actions characterized by 

an employer as reductions-in-force, 

restructuring, or downsizing. 

11. Alien Influence and Control Over 

the Job Opportunity 

The proposed rule provided that, if 

the employer is a closely held 

corporation or partnership in which the 

alien has an ownership interest, or if 

there is a familial relationship between 

the stockholders, corporate officers, 

incorporators, or partners and the alien, 

the employer must furnish 

documentation that would allow the CO 

77356 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

to determine whether the job has been 

and is clearly open to U.S. workers. 

a. Number of Employees

Two commenters recommended 

adding an attestation on the ETA Form 

9089 regarding the number of 

employees. The commenters noted if the 

alien is one of a few employees, the job 

may not be open to U.S. workers. 

We agree with the comments 

addressing the possible influence of the 

alien as one of a small number of 

employees, and we have added the 

Modularsesa Modular Container 

Systems’ (89–INA–228, July 16, 1991) 

(en banc) criterion of whether the alien 

is one of a small number of employees 

to the regulation at § 656.17(l) 

(§ 656.17(k) in the NPRM–67 FR at 

30474). This factor was listed in the 

preamble to the proposed rule, but was 

not included in the regulation at 

§ 656.17(l). We have also added a 

question to the ETA Form 9089 that asks 

for the number of employees in the area 

of intended employment. 

b. Familial Relationship Between Alien 

and Employer 

AILA commended DOL for the 

proposed rule’s limitations regarding a 

beneficiary’s ownership interest in the 

company or familial relationship with 

the stockholders or the owners. AILA 

noted, however, a familial relationship 

alone should not invalidate the job 

opportunity, and suggested the 

regulations allow the employer to 

provide evidence on the issue of undue 

influence and bona fide job opportunity 

beyond the topics listed. 

In determining whether the job is 

subject to the alien’s influence and 

control, we will evaluate the totality of 

the employer’s circumstances, using the 

Modular Container Systems criteria 

listed in the preamble to the proposed 

rule (see 67 FR at 30474). No single 

factor, such as a familial relationship 

between the alien and the employer or 

the size of the employer, shall be 

controlling. 

c. Ability To Pay the Salary for the 

Position 

One commenter contended questions 

about the employer’s ability to pay 

should not be eliminated. The 

commenter stated in cases where the job 

itself is in question (e.g., there may not 

be a real company or the employer has 

been in business for years without any 

employees), the question of the ability 

to pay the salary for the labor 

certification position might become 

significant in reviewing the case. The 

commenter suggested a section be added 

to the proposed rule that specifically 

addresses the nonexistent or marginal 

employer. This section, the commenter 

recommended, should mirror General 

Administrative Letter No. 1–97, dated 

October 1, 1996, Subject: Measures for 

Increasing Efficiency in the Permanent 

Labor Certification Process (GAL 1–97), 

and state jobs that did not exist before 

the alien was offered the position may 

be considered not truly open to U.S. 

workers unless the employer can clearly 

demonstrate a change in business 

operation caused the position to be 

created after the alien was hired. 

As addressed in our discussion of the 

employer’s ability to pay above, we 

believe the employer’s obligation to 

document and attest that the job is open 

to U.S. workers provides the CO with 

sufficient basis to inquire whether an 

employer is able to pay the offered 

salary and to place the alien on the 

payroll and to deny the application on 

the basis that the job is not truly open 

to U.S. workers if the employer does not 

furnish the appropriate documentation. 

We also noted DHS will assess the 

employer’s financial status as part of the 

immigrant visa process, and we do not 

see a need to request duplicative 

information from the employer. Further, 

we note GAL 1–97, Change 1, dated May 

11, 1999, does not state jobs that did not 

exist before the alien was offered the 

position may be considered not truly 

open to U.S. workers. We have 

determined such a provision is not 

realistic with respect to the 

requirements and operations of newly 

formed business entities. Consequently, 

we have not included the language 

proposed by the commenter in this final 

rule. 

12. Multiple-Beneficiary and National 

Applications 

Under both the current and proposed 

rules, a separate application must be 

filed for each alien beneficiary. Two 

commenters suggested changing the 

scope of the applications. ACIP and 

AILA suggested DOL establish a 

procedure under which one application 

could be used for multiple beneficiaries. 

AILA also suggested DOL establish a 

system for national applications. 

a. Multiple-Beneficiary Applications 

ACIP believed employers with 

multiple job openings within the same 

occupational classification should be 

allowed to file a single application for 

multiple positions with unnamed alien 

beneficiaries. Under the current system, 

the employer submits individual 

applications for each alien beneficiary, 

but often uses exactly the same evidence 

to support each of the applications. The 

current process burdens the employers 

with preparation and submission of 

multiple applications—identical except 

for the details concerning the alien 

beneficiary—and burdens DOL with 

review of such duplicative applications. 

A multiple-beneficiary application 

process would reduce the burden on 

both the employer and DOL without 

compromising the protection of U.S. 

workers afforded under the current 

system.

AILA recommended DOL consider 

establishing a procedure under which a 

single ETA form could be used for a 

number of openings for the same 

position. The employer would designate 

the number of openings and the number 

of alien beneficiaries on the ETA Form 

9089, and would also submit 

information for each alien beneficiary. 

DOL would adjudicate the filing as one 

case, thereby increasing efficiency and 

avoiding inconsistent results. 

Creating a new category of application 

would conflict with our goal of 

streamlining processing. This would 

create more duplication at DOL, and 

would require development of new 

regulations, criteria, and means of 

reviewing such applications. 

However, the need for a multiple 

beneficiary application is largely 

obviated by the option provided 

employers by the e-filing process that 

permits employers who frequently file 

permanent labor certification 

applications to set up secure files within 

the ETA electronic filing system 

containing information common to any 

permanent application they may wish to 

file. As explained above, under this 

option, each time an employer files an 

ETA Form 9089, the information 

common to all of its applications, e.g.

employer name and address, etc. will be 

entered automatically, and the employer 

will have to enter only the data specific 

to the application at hand. 

b. National Applications 

AILA recommended DOL consider 

establishing a procedure for national 

labor filings. We have concluded it 

would be inappropriate to authorize 

national applications. Even if the 

suggestion could be considered a logical 

outgrowth of the proposed rule, the 

concept of a national application 

appears to conflict with several existing 

sections of the regulations. While 

workers in a given occupation may be 

unavailable in much of the U.S., there 

often are local or regional areas in 

which qualified workers are available in 

that occupation. A national certification 

could result in the placement of an alien 

worker in a geographic area that has 

many available workers in the 

sponsored occupation. Consequently, a 

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77357

national certification could adversely 

affect the wages and working conditions 

of U.S. workers in the area of actual 

employment. Additionally, we note 

certifying national applications using a 

national average wage could have an 

adverse effect on the wages of U.S. 

workers in the occupation, as this wage 

would be lower than the local wage rate 

in many areas of employment. Finally, 

occupations for which there is a 

national shortage may be appropriately 

considered for inclusion on Schedule A.

See our discussion of Schedule A above. 

L. Optional Special Recruitment and 

Documentation Procedures for College 

and University Teachers 

The only modification made to the 

proposed regulations for the optional 

recruitment and documentation 

procedures for college and university 

teachers in this final rule was to revise 

§ 656.18(a) to reflect the elimination of 

the proposed Prevailing Wage 

Determination Request form and certain 

elements being incorporated back into 

the Application for Permanent Labor 

Certification.

Other commenters recommended the 

expansion of the optional recruitment 

procedures for college and university 

teachers to include additional 

occupations. These recommendations 

are discussed below.

1. Expansion of the Optional 

Recruitment Procedures To Include 

Additional Occupations 

a. Inclusion of High-Level Positions 

Some commenters urged DOL to 

expand the scope of § 656.18 beyond 

college and university teaching 

positions. A large employer noted the 

proposed regulation continues the 

dichotomy between labor certifications 

for colleges and universities and labor 

certifications for other employers, under 

which universities and colleges can 

select the best qualified candidate while 

other employers must select a 

‘‘minimally qualified’’ candidate. This 

commenter was of the opinion it was no 

more important in academia than in 

U.S. industry to pick the best-qualified 

candidate. The commenter suggested 

DOL either eliminate the special 

procedures for academia, or expand 

§ 656.18 to include ‘‘high-level and 

research positions’’ within private 

companies. 

We cannot eliminate the special 

procedures for academia or expand 

§ 656.18 to include high level and 

research positions as suggested by the 

commenter. The current regulations 

implement the October 20, 1976 

amendments to the INA, which 

provided, as a limited exception to the 

generally applicable rule, that in the 

case of aliens who are members of the 

teaching profession or of exceptional 

ability in the sciences or arts, the U.S. 

worker must be equally qualified with 

respect to the alien. Thus, we cannot 

expand the scope of § 656.18 to include 

high-level and research positions within 

private companies. As noted above in 

our discussion of Schedule A, aliens of 

exceptional ability in the sciences or 

arts are included on Schedule A.

b. Inclusion of Primary and Secondary 

School Teachers 

A few of the commenters urged DOL 

to expand the category of college and 

university teachers to include primary 

and secondary school teachers. These 

commenters cited the growing shortage 

of primary and secondary school 

teachers in both public and private 

institutions as more teachers reach 

retirement, the difficulty in attracting 

and retaining qualified teachers, and the 

need for the best and brightest teachers 

at the pre-college level. 

A law firm contended the failure to 

include primary and secondary teachers 

in the same category as college and 

university teachers was unlawful. Citing 

the INA provisions on certification of 

U.S. workers, this commenter 

maintained the Secretary of Labor must 

certify the availability of ‘‘equally 

qualified’’ rather than ‘‘qualified’’ U.S. 

workers in the case of an alien who is 

a ‘‘member of the teaching profession,’’

and noted the term ‘‘profession’’ is 

defined in the INA to include 

‘‘* * *teachers in elementary or 

secondary schools, colleges, academies, 

or seminaries.’’ The commenter 

maintained DOL must apply the same 

certification requirements for both 

college and university teachers and for 

elementary and secondary teachers. 

The commenter cited a BALCA 

decision (In the Matter of Dearborn 

Public School on Behalf of Anthony 

Bumbaca, (91–INA–222, December 7, 

1993) to support the argument there is 

a conflict between the DOL regulations 

and the plain language of the statute. 

According to the commenter, BALCA 

cited an unpublished decision of the 

United States District Court for Alaska 

(Mastroyanis v. U.S. Department of 

Labor, No. A 98–089 Civil (D.C. AK. 

May 5, 1989)), which found DOL’s 

regulations limiting the application of 

the ‘‘equally qualified’’ standard to 

college and university teachers and not 

applying it to a secondary school 

teacher were in conflict with the plain 

language of the INA. 

With respect to expanding § 656.18 to 

include primary and secondary 

teachers, we have reviewed the statute, 

the legislative history, and the 

Mastroyanis decision, and have 

determined not to apply the court’s 

language in Federal court districts 

outside the District of Alaska. As 

indicated above, the equally qualified 

language was added to Section 

212(a)(14) (now Section 212(a)(5)(A)(i)) 

by the INA amendments of 1976. The 

Judiciary Committee of the House of 

Representatives stated on passage of the 

bill that:

The committee believes the Department of 

Labor has impeded the efforts of colleges and 

universities to acquire outstanding educators 

or faculty members who possess specialized 

knowledge or a unique combination of 

administrative and teaching skills. As a 

result, the legislation included an 

amendment to section 212(a)(14) [now 

212(a)(5)(A)], which required the Secretary of 

Labor to first determine that ‘‘equally 

qualified’’ American workers are available in 

order to deny a labor certification for 

members of the teaching profession * * *. 

(See H. Rep. No. 1553, 94th Cong., 2d Sess. 

11 (Sept. 15, 1976))

In addition, Congressman Eilberg 

stated during the debate on the 

amendments to the INA the new 

language was intended to apply to 

teachers only at the college and 

university level.

Another provision contained in this 

legislation would address the serious 

problem that has confronted a large number 

of colleges and universities in this country. 

That provision—contained in an amendment 

to the labor certification section of the 

Immigration and Nationality Act (section 

212(a)(14))—would require the Secretary of 

Labor to determine that ‘‘equally qualified’’

American teachers are available in order to 

deny a labor certification.

(See 122 Cong. Rec., Part 126, p. 

33633 (Sept. 29, 1976)) 

Reasonably, contemporaneously and 

consistent with this stated 

Congressional intent on January 18, 

1977, we promulgated regulations to 

implement the amendment (42 FR 3440 

(January 18, 1977)). In the preamble to 

that rule, we stated we were responding 

to comments on the proposed rule 

submitted by the House Committee on 

Immigration, Citizenship, and 

International Law, which commented 

that the provision with respect to 

teachers was intended by Congress to 

apply only to educators at the college 

and university level, not to all members 

of the teaching profession. This 

interpretation of the equally qualified 

provision, which is in the current 

regulations and the proposed rule, is 

unchanged for purposes of this final 

rule because it is more in accord with 

Congressional intent than the above 

comments and better serves to protect 

77358 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

U.S. workers from adverse effects than 

would an expansion of the category to 

teaching jobs at the elementary and 

secondary school levels. 

M. Live-in Household Domestic Service 

Workers 

Most of the documentation 

requirements for live-in household 

domestic service workers are unchanged 

from the requirements contained in the 

current regulation. However, certain 

documentation required on the ETA 750 

form will no longer be collected during 

the application process; instead the 

regulations provide that employers will 

be required to supply this 

documentation if their labor 

certification applications are audited or 

as otherwise requested by a CO. 

Employers will be required to maintain 

all required documentation and, in the 

event of an audit or CO request, the 

employer will be required to submit this 

documentation to DOL, as well as any 

other documentation required in order 

to complete the review. 

1. Modifications to the Proposed Rule 

We have made two modifications to 

the proposed rule in this final rule. 

First, we have made a technical change 

to the regulations at § 656.19(a) to 

clarify, consistent with the general 

instructions at § 656.10(a)(1), that 

applications for live-in household 

domestic service workers must be filed 

under the basic process at § 656.17. 

Second, we have changed the language 

in § 656.19(b)(1)(iv) of the proposed 

regulation from ‘‘whether or not’’ a 

private room and board will be provided 

to ‘‘that’’ a private room and board will 

be provided, to eliminate an apparent 

inconsistency with § 656.19(b)(2)(ix), 

which requires a statement that the 

employer will provide a private room 

and board at no cost to the worker.

2. Oversight and Audit of Domestic 

Service Worker Applications 

We received very few comments on 

the issue of live-in household domestic 

service workers under § 656.19. One 

commenter stressed the need for 

comprehensive auditing of this category 

of alien workers. Another commenter 

recommended retaining the SWAs to 

manage the application process because 

their staff could be fully dedicated to 

managing these applications promptly 

and reducing the current backlog. We 

anticipate applications submitted on 

behalf of domestic service workers will 

be carefully reviewed at ETA’s 

application processing centers. While 

SWAs are no longer involved in the 

processing of applications, the SWAs 

are always free to provide any 

information they feel appropriate about 

job offers for live-in domestic workers. 

As indicated in our discussion of the 

audit letter process below, we have 

retained the flexibility to adjust auditing 

emphasis, as necessary, under this final 

rule. 

3. One (1) Year Experience Requirement 

Some commenters suggested 

maintaining the requirement in the 

current regulations for live-in domestic 

workers to have at least 1 year of work 

experience with someone other than the 

employer-applicant. One commenter 

observed, prior to this requirement, 

applications for alien employment 

certification were filed on behalf of 

professionals (i.e., doctors, lawyers, etc.) 

with no experience in domestic service 

occupations as a quick way to get into 

the U.S. 

We agree with the commenters who 

proposed live-in domestic workers 

should have at least 1 year of paid 

experience in the occupation. For more 

than 25 years, we have required proof of 

1 year of full-time, paid experience for 

live-in domestic workers to ensure the 

alien knows the demands unique to 

household domestic service work, has 

some attachment to the occupation, and 

will likely continue working in this 

occupation after arrival in the U.S. Our 

experience has shown persons not 

previously employed in the occupation 

for a reasonable length of time generally 

do not remain in that employment in 

the U.S. Therefore, we have retained 

this requirement in the final rule. This 

requirement does not correlate to the 

minimum training and/or experience 

required to perform the job and should 

not be shown as a requirement for the 

job opportunity. 

N. Audit Letters 

We proposed to eliminate the current 

procedure of issuing Notices of Findings 

(NOFs). Section 656.20 of the proposed 

rule provides for the issuance of audit 

letters, which will be primarily 

standardized computer-generated 

documents. This section also provides 

that the CO’s review of a labor 

certification application may lead to an 

audit, or other request by the CO, and 

certain applications also may be 

selected for audit for quality control 

purposes. If an application is selected 

for either reason, the CO will issue an 

audit letter. 

We received approximately 50 

comments on the proposed audit letter 

procedure from SWAs, attorneys, 

academic employers, and other 

organizations. Only one commenter 

suggested retaining the existing NOF 

procedure. Most of the commenters 

recommended clarifications or changes 

to the proposal, including clarification 

about how audits would be targeted, 

extension of the 21 day period for reply 

to an audit letter, and inclusion of 

specific requirements as to how the 

audit letters should be delivered to the 

applicants. Several commenters also 

discussed the consequences of failure to 

respond to an audit letter, with most 

opposing a presumption of a material 

misrepresentation. 

1. Elimination of the Notice of Findings 

and Contents of the Audit Letter 

AILA stated the proposed audit 

system would leave employers with no 

reasonable procedure through which 

they can obtain help in correcting 

deficiencies or receive guidance on 

what the CO views the deficiency to be. 

The absence of a NOF process would in 

particular hurt employers not 

represented by counsel. Such employers 

may have their applications denied 

because of a single mistake. AILA urged 

DOL to consider either restoring the 

NOF or expanding the audit process to 

allow an audit to be used to identify and 

resolve labor certification mistakes and 

deficiencies. 

AILA further asserted a standardized, 

computer-generated audit letter would 

be essentially useless for the employer, 

because it would not tell the employer 

what documentation is truly needed or 

indicate to the employer if there was a 

particular problem with the application 

that needed to be addressed by the 

submission of additional evidence. 

One commenter stated unless the 

audit letters are drafted on an individual 

basis and do not rely on boilerplate 

language, they qualify as data 

collections under the Paperwork 

Reduction Act and will require OMB 

clearance. This would be true, according 

to the commenter, both for a list of 

standard templates or situations in 

which the regional office drafts its own 

set of templates, as long as the data 

collector is used more than 10 times in 

a year.

Another commenter suggested 

changing the text of the proposed 

regulation to read: ‘‘Request 

supplemental information and/or 

documentation; and/or require the 

employer to conduct recruitment under 

***’’ (emphasis added) to ensure the 

CO can both request additional 

documentation and simultaneously 

require the employer to conduct 

supervised recruitment. 

We believe the system outlined in this 

final rule is more transparent and userfriendly than the current process. The 

regulations indicate what 

documentation employers are required 

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77359

to assemble, maintain, and submit to 

respond to an audit letter. (Also see 67 

FR at 30466 and 30475). We believe a 

prudent employer would gather the 

documentation before filing the 

application and have it available in 

anticipation of a possible audit. Further, 

employers will be able to contact DOL 

if they have questions about the audit 

letter. It should be considerably easier 

for employers to prepare an acceptable 

response to an audit letter than to rebut 

a NOF. 

An audit letter will not be a ‘‘fishing 

expedition’’ as characterized by AILA. 

We will only request information 

necessary to make a determination on a 

specific case or to monitor the system 

effectively. Not all audit letters will 

request the same amount of information 

from employers. Some audit letters will 

be directed toward specific deficiencies 

in the employer’s application. Others 

will be issued for general quality control 

purposes. Both types of audits are 

necessary to maintain the integrity of 

the labor certification system. 

With respect to one commenter’s 

contention that the audit letters will 

require OMB clearance, we have 

concluded the audit letters to be used 

under this final rule will be within the 

scope of 5 CFR 1320.4(a)(2) and 

1320.4(c), which exclude information 

collected pursuant to an audit from a 

‘‘collection of information’’ as defined at 

5 CFR 1320.3(c). Because the audit 

letters are not considered a collection of 

information, they do not require OMB 

clearance. 

One commenter suggested changing 

the regulatory language to ensure the CO 

can request supplemental information 

and simultaneously require supervised 

recruitment. No change is warranted 

because a determination as to whether 

supervised recruitment is required 

would not be made until the initial 

required documentation that the 

employer must submit in response to 

the audit letter is received and 

reviewed. 

2. Criteria for Audits 

Some commenters stated DOL should 

establish and publish criteria for when 

audit letters would be issued. AILA, 

among other commenters, criticized the 

proposed rule for not containing any 

criteria for audits, and contended the 

type of criteria that might flag a case for 

audit should be specified so that 

employers may have a reasonable 

expectation of the factors that might 

lead to an audit. 

Other commenters, however, opposed 

making the audit process predictable. 

FAIR stated immigration attorneys and 

consultants will quickly be able to learn 

how to avoid audit triggers by checking 

a ‘‘safe’’ pattern of responses, and thus 

will manipulate the computer-scanned 

review process. Another commenter 

stated employers, attorneys, or their 

consultants will soon learn to make 

entries on the application that will pass 

the scrutiny of the audit process.

Some commenters suggested specific 

audit criteria. One commenter suggested 

that 100 percent of applications 

pertaining to live-in household 

domestic service workers should be 

audited, to avoid worker abuse. The 

AFL–CIO suggested a number of 

triggers. 

Two commenters were concerned that 

a job already filled by the alien 

beneficiary would be considered 

encumbered, and this factor would be 

important, and perhaps controlling, in 

prompting an audit. Another commenter 

stated this would create a particular 

burden for academic employers. 

We believe making the process 

predictable would defeat the purpose of 

the audits. Further, we want to retain 

the flexibility to change audit criteria, as 

needed, to focus on certain occupations 

or industries when information leads us 

to believe program abuse may be 

occurring in those areas. For these 

reasons, we are not including audit 

criteria in this final rule. 

The AFL–CIO made a number of 

suggestions for criteria to use in 

selecting applications for audit, such as 

a history of unfair labor practices, 

workforce composition, or, layoffs in the 

past 6 months. Currently, when we 

become aware of such issues, they are 

considered in determining whether to 

issue a NOF. Similarly, under the new 

system, if we become aware of similar 

issues, they will be considered in 

determining whether to issue 

individualized audit letters. It should 

also be noted employers are required to 

indicate on the application form 

whether there is a strike, lockout, or 

work stoppage in the course of a labor 

dispute in the occupation in which the 

alien beneficiary would be employed at 

the place of employment. Regarding 

encumbered positions, the fact the job 

for which the application is filed is 

encumbered is not a controlling factor 

in prompting an audit because the 

overwhelming percentage of these jobs 

are encumbered. 

We anticipate using random-sampling 

techniques to produce a representative 

sample of the entire universe of 

applications. In addition, we will target 

for audit other applications that appear 

to have problematic issues. We do not 

believe it is appropriate to include 

sampling standards in this final rule 

because we want the flexibility to 

change them over time to reflect what 

we learn through our administration of 

the program. 

3. Sending and Responding to the Audit 

Letter 

Some commenters supported the 

proposed 21 day time limit for 

applicants to produce documentation. 

One commenter stated anyone who had 

prepared for the application would be 

able to produce proof, but that 21 days 

was not enough time to assemble false 

documentation. 

Other commenters were concerned 

that audit letters would be delayed in 

the postal system. AILA stated because 

DOL typically sends its decisions by 

U.S. mail, they may take from 3 to 10 

days to arrive at the employer’s or 

attorney’s office. Two academic 

commenters stated the audit letter 

should be sent as quickly as possible by 

fax or e-mail in addition to U.S. mail. 

Other commenters urged the letters be 

sent by certified mail, not standard U.S. 

mail, with one claiming a confirmed 

delivery requirement is not an 

unreasonable burden to place on DOL. 

To account for possible delays in mail 

delivery, and for other delays caused by 

circumstances beyond the control of the 

employer, we have extended the 

response time to 30 days. Employers’

responses must be sent within the 30-

day time limit, but need not be received 

by DOL by that date. As stated in the 

preamble to the proposed rule, the 

employer is expected to have assembled 

the documentation required before filing 

the application. None of the 

commenters stated this expectation is 

unreasonable. 

One commenter stated some records 

may be purged in the state systems after 

a short period of time, such as 30 or 60 

days, making it impossible to retrieve 

information by the time an audit is 

requested. 

The Application for Permanent 

Employment Certification requires the 

employer to provide the start and end 

date of the job order on the application 

form to document the job order has been 

placed. Gathering additional 

information on the job order from the 

SWA will not be necessary; therefore, 

no extension of the response time is 

warranted for this purpose. 

One commenter urged that absent 

allegations of fraud or 

misrepresentation, a 90-day limit from 

the date of the certification decision 

should be established for when DOL can 

issue an audit letter. Otherwise, an 

employer may have obtained an I–140 

from the DHS based on an approved 

labor certification and be proceeding 

through the adjustment of status process 

77360 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

with the DHS when the audit letter is 

issued. Another commenter noted the 

rule provides no guidance on the length 

of time an employer must maintain 

documentation. Because the proposed 

rule authorizes revocation of a labor 

certification, the commenter 

recommended DOL specify the time 

period in which an audit letter may be 

sent, so employers do not mistakenly 

assume that once a certification is 

granted they no longer need to maintain 

the documentation.

The commenter’s proposal that audit 

letters must be issued no more than 90 

days after the certification date is 

unnecessary. This final rule clearly 

states audit letters are issued before a 

final determination is made under 

§ 656.24. 

Regarding the retention of supporting 

documentation, as discussed above such 

documentation must be maintained for 

five years from the date of filing. 

4. Extensions 

Several commenters supported 

allowing extensions of time to respond 

to audit letters. AILA stated not 

allowing extensions under any 

circumstances is too harsh. Other 

commenters also supported extensions 

in appropriate circumstances. One 

commenter stated the elimination of any 

possibility of extension of time would 

deny employers due process. 

We have concluded it would be 

appropriate for this final rule to provide 

that COs may in their discretion, for 

good cause, grant one extension up to 30 

days for the employer to provide 

requested documentation. 

5. Penalties for Failure To Respond 

Timely to the Audit Letter 

The proposed rule authorized a CO to 

deem an employer’s failure to submit 

ocumentation in response to an audit 

letter a material misrepresentation of the 

employer’s attestations that it complied 

with all documentation requirements. 

As proposed, if the CO determines a 

material misrepresentation was made, 

the employer may be required to 

undergo supervised recruitment. 

Some commenters objected to the 

proposed rule’s definition of a material 

misrepresentation. One commenter 

maintained the rule should clarify the 

definition of ‘‘material 

misrepresentation’’ as used in 

§ 656.20(a)(3)(ii) and recommended 

DOL use the common law definition of 

the term to develop the rule definition. 

ACIP stated the presumption of 

material misrepresentation if the 21 day 

deadline is missed is unduly harsh for 

good-faith employers and an insufficient 

deterrent to those trying to defraud the 

system. ACIP suggested that instead 

DOL adopt fines and penalties for 

various levels of misrepresentation 

similar to those employed in the H–1B 

context. Another commenter suggested 

consequences similar to those in the 

LCA program used in connection with 

H–1B filings. A SWA recommended that 

failure to submit information in a timely 

way be penalized by barring the 

employer from refiling for at least 6 

months. 

One commenter stated the automatic 

presumption of a material 

misrepresentation is unreasonable. 

AILA stated the rule’s presumption of 

material misrepresentation ‘‘violates 

fundamental precepts of fairness.’’ AILA 

noted the audit letter may not be 

received, the employer may be on 

vacation, or the response may be lost in 

transit. After reviewing the comments, 

we have decided failure to provide 

supporting documentation will not be 

deemed a material misrepresentation. 

Instead, this final rule provides in 

§ 656.20(a)(3) that failure to provide 

required documentation in response to 

an audit letter will result in denial of 

the pending application and may result 

in an order to conduct supervised 

recruitment under sections 656.20(b) or 

656.24(e) in future filings of labor 

certification applications. Several 

commenters mistakenly asserted an 

employer’s failure to provide supporting 

documentation when requested in an 

audit letter would invariably result in 

an order to conduct supervised 

recruitment for a period of two years; 

however, we believe it is more 

reasonable to provide the CO with 

discretion to review the circumstances 

in each case to determine whether this 

penalty will be imposed. For this 

reason, both §§ 656.21(a) and 656.24(f) 

state the employer ‘‘may’’ be required to 

conduct supervised recruitment, not 

that an employer ‘‘shall’’ be required to 

conduct supervised recruitment. 

With respect to the recommendations 

by some commenters to impose fines 

and penalties (such as debarment of an 

employer) similar to those employed in 

the H–1B program, we have concluded 

that before making such fundamental 

changes we should publish any fines 

and penalties we may be considering for 

notice and comment in a proposed rule. 

Therefore, we have not included any 

new fines or penalties in this final rule. 

O. Supervised Recruitment 

The proposed rule provides in any 

case in which the CO considers it to be 

appropriate, post-filing supervised 

recruitment may be required of the 

employer. The supervised recruitment 

will be directed by the CO. 

We received approximately 20 

comments on this proposal. 

Commenters suggested the criteria for 

when a CO may require supervised 

recruitment should be made more 

specific. Several commenters 

questioned whether the CO would have 

the information and resources necessary 

to adequately supervise the recruitment. 

A few commenters discussed the details 

of the supervised recruitment process 

itself, including the time limits for an 

employer to respond to a request from 

the CO for a report on the supervised 

recruitment. One commenter questioned 

the effectiveness of supervised 

recruitment in general and suggested 

abandonment of supervised recruitment.

1. Criteria for Requiring Supervised 

Recruitment 

AILA claimed the proposed 

regulations do not set out any standards 

or guidelines for when and in what 

circumstances a CO may order 

supervised recruitment. The commenter 

stated this will lead to inconsistent 

practices. Another commenter 

contended the proposed rule was 

unclear about whether supervised 

recruitment may be required outside the 

audit process. If so, the criteria used to 

make the determination should be 

specified. If not, the text of the proposed 

rule should be amended to remove the 

word ‘‘including’’ from 

§ 656.20(a)(3)(ii). 

One commenter noted the preamble to 

the proposed rule stated supervised 

recruitment could be required on the 

basis of labor market information. 

However, the commenter suggested 

there was a potential conflict between 

the layoff provisions of the proposed 

rule and the rule’s preamble concerning 

the type of labor market information the 

CO could rely upon to order supervised 

recruitment. According to the 

commenter, the layoff provision 

(§ 656.17(k) of this final rule) refers to a 

layoff by the employer applicant, while 

the preamble includes strongly worded 

language that the CO may rely upon 

generic labor market information, 

including information about layoffs by 

other companies within the same 

industry or geographic region. 

One commenter noted if the CO 

believes there is worker availability at 

the time of adjudication, the CO can 

order a current test of the labor market 

although there was no worker 

availability when the application was 

filed. The commenter indicated an 

employer should have the right to 

request a retest of the labor market in 

those situations where U.S. workers 

were available at the time it conducted 

a test of the labor market. This is 

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77361

particularly a problem when there has 

been a lengthy interval between the 

filing of the application by the employer 

and the adjudication by the CO and 

labor market conditions have changed 

in the interim. 

Under the final rule at § 656.21, postfiling supervised recruitment may be 

ordered in any case where the CO 

deems it appropriate. As we stated in 

the preamble to the proposed rule, we 

anticipate the decision to order 

supervised recruitment will usually be 

based on labor market information. 

However, it is impossible to determine 

in advance every reason why supervised 

recruitment may be appropriate. We do 

not wish to limit the authority of the 

COs in this regard. 

We see no conflict between the layoff 

provisions of § 656.17(k) (§ 656.17 (j)(1) 

of the NPRM) and the preamble to the 

NPRM concerning the type of labor 

market information the CO may 

consider in ordering supervised 

recruitment. While the layoff provision 

addresses a required part of the 

employer’s recruitment process, layoffs 

in the area of intended employment may 

indicate additional recruitment is 

needed to make an adequate test of the 

labor market. The main point of the 

preamble language in our discussion of 

the layoff provisions is to indicate the 

proposed rule requiring employers to 

consider workers they have laid off 

within a reasonably contemporaneous 

period of time is consistent with our 

longstanding position that COs have the 

authority to consider such workers. See 

§§ 656.24(b)(2) and 656.24(b)(2)(iii) in 

the current regulations. 

2. Resources of the Certifying Officer 

Several commenters questioned 

whether the CO would have the 

resources necessary to conduct 

supervised recruitment. One SWA 

recommended the proposal to have the 

CO conduct supervised recruitment 

should be deleted, because of the lack 

of resources on the part of the CO. Two 

SWAs said the COs may not have the 

capacity to process large volumes of 

cases requiring supervised recruitment. 

One SWA stated that given the number 

of applications filed annually and the 

small number of regional offices, there 

was reason for concern about the extent 

to which regional office staff will be 

able to assist employers, or to continue 

to supply the same level of service 

currently supplied by state and local 

offices. 

Administrative decisions about the 

way DOL allocates resources are outside 

the scope of this rule. Therefore, this 

final rule does not specify how 

resources shall be used. However, we do 

believe the COs will be able to handle 

whatever supervised recruitment is 

required. 

3. Knowledge of the Certifying Officer 

Several SWAs felt the CO would not 

have adequate knowledge of local labor 

market conditions, experience with the 

details of state employment service 

systems, or knowledge of local 

newspapers. One SWA stated DOL 

would need to set up an information 

conduit with the SWAs so DOL will 

have the necessary information to 

conduct supervised recruitment. 

Another SWA stated the knowledge and 

experience of the SWAs with respect to 

labor conditions will be entirely ignored 

under the proposed system, and the 

rules offer no guidelines by which DOL 

would be able to make determinations 

that U.S. workers could acquire the 

skills of a particular job for a particular 

employer in a particular area. 

The knowledge of the CO and 

coordination with the SWA is covered 

in our discussion of the role of the SWA 

in Section B above. Regarding the lack 

of guidelines for determining whether 

U.S. workers could acquire the skills for 

a particular job opportunity, see our 

discussion of on-the-job training above.

4. Supervised Recruitment Process 

One commenter contended the 

proposed rule fails to place limits on the 

CO’s ability to designate appropriate 

sources of workers where the employer 

must recruit. The commenter claimed 

there must be some limits imposed on 

the amount of recruitment required, to 

avoid multiple rounds of recruitment 

and even different types of recruitment 

in different parts of the country, 

depending on what the CO believes is 

appropriate. 

Two commenters suggested time 

limits should be established for the CO 

to approve advertisements, stating that 

time limits are particularly important 

when the employer is required to 

publish in the next-available 

publication. Another commenter stated 

supervised recruitment should be 

required to be completed within 60 days 

or the application be denied. AILA 

stated in light of the potential for the CO 

to require extensive supervised 

recruitment, the proposed 21 day 

response period is not sufficient. AILA 

urged DOL to adopt a longer response 

period, or, at a minimum, give the CO 

discretion to extend the 21 day period. 

ACIP stated the proposed rule 

mandates outdated recruitment methods 

that studies have shown are ineffective 

at finding qualified workers. This 

commenter recommended DOLsupervised recruitment be eliminated, 

and RIR be made the standard for all 

labor certification applications. 

One commenter noted advertising is 

required prior to filing an application. 

Because supervised recruitment will 

take place after filing, the commenter 

believed the advertising under 

supervised recruitment will be 

needlessly repetitive, and could create 

conflicting descriptions and 

requirements of the job between the first 

unsupervised round of advertising and 

the second supervised round of 

advertising. 

We will not place limits on the CO’s 

authority to designate appropriate 

sources for recruiting U.S. workers. 

However, we agree the CO should notify 

the employer of all appropriate 

recruitment sources at the outset of the 

recruitment process, so employers will 

not be required to go through multiple 

rounds of recruitment. By and large, this 

is not a problem under the current 

system. As we gain more experience 

with the program, we will issue 

administrative guidance if appropriate. 

There are no statutory requirements 

that we approve advertisements within 

any specified time frame; therefore, this 

final rule does not impose any time 

limits by which the CO must approve 

advertisements. One commenter 

suggested all recruitment be completed 

within 60 days. We will not impose an 

overall time limit for the recruitment 

process; however, we do believe there 

should be limits at various stages of the 

process so we can attain closure in the 

case. This final rule imposes the 

following time limits: the employer 

must supply a draft advertisement to the 

CO for review and approval within 30 

days of being notified that supervised 

recruitment is required. As directed in 

the letter from the CO approving the 

advertisement, the employer must 

advise the CO when the advertisement 

will be published. The employer must 

provide to the CO a detailed written 

report of the employer’s supervised 

recruitment within 30 days of the CO’s 

request for such a report (§ 656.21(e)). 

This final rule provides in the event 

required documentation or information 

is not provided within the 30 days of 

the date of the CO’s request, the CO will 

deny the application. However, COs in 

their discretion, for good cause shown, 

may grant one extension to any request 

for documentation or information. 

The commenter’s concern that postfiling supervised recruitment will be 

needlessly repetitive is misplaced. Postfiling supervised recruitment routinely 

occurs under the current system; e.g., 

after a NOF or when an employer’s 

request for RIR processing is denied. 

Changes in job descriptions and 

77362 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

requirements are routinely needed to 

correct deficiencies in the original test 

of the labor market. Program experience 

has shown these types of changes do not 

create confusion among employers or 

job seekers. 

Regarding the suggestion that DOLsupervised recruitment be eliminated, 

we think supervised recruitment is a 

reasonable quality control measure in an 

attestation-based system. 

5. Technical Correction 

We have made a technical correction 

in § 656.21(b), which now reads: ‘‘If 

placed in a newspaper of general 

circulation, the advertisement must be 

published for 3 consecutive days, one of 

which must be a Sunday; or, if placed 

in a professional, trade, or ethnic 

publication, the advertisement must be 

published in the next available 

published edition.’’

P. Labor Certification Determinations 

1. Referral of Applications to the 

Division of Foreign Labor Certification 

The Notice of Proposed Rulemaking 

did not provide for referral of 

applications presenting special or 

unique problems to the National 

Certifying Officer for determination, or 

for the possibility of directing that 

certain types of applications or specific 

applications be handled in the national 

office as provided for in the current 

rule. We have concluded, however, it 

would be prudent to retain similar 

authority in this final rule. Accordingly, 

this final rule provides for the handling 

of permanent labor certification 

applications in certain circumstances at 

§ 656.24(a). We have determined the 

handling of certain applications in the 

national office is a matter of agency 

procedure under the Administrative 

Procedure Act. 

2. Comments on Determination Process 

The commenters focused on four 

issues: able and qualified U.S. workers, 

time to file requests for reconsideration, 

whether new information could be 

included in requests for reconsideration, 

and material misrepresentations. 

a. Able and Qualified U.S. Workers 

Comments on able and qualified U.S. 

workers are essentially covered in our 

discussion of the recruitment report 

above. Employers, as well as the CO, 

must consider a U.S. worker qualified 

for the job opportunity if the worker can 

acquire the skills necessary to perform 

the duties involved in the occupation 

during a reasonable period of on-the-job 

training. 

b. Time to File Requests for Review and 

Reconsideration 

The proposed rule would have 

reduced the time for an employer to file 

a request for reconsideration of a denied 

labor certification application from 35 

calendar days to 21 days. Two 

commenters emphasized the reduction 

should be eliminated. AILA maintained 

21 days is insufficient time to prepare 

a request for reconsideration because 

the CO may in his or her discretion treat 

it as a request for review. Therefore, we 

agree as much time has to be given to 

preparing a request for reconsideration 

as to preparing a request for review.

As with other 21 day deadlines in the 

proposed rule, we have increased this 

period from 21 to 30 days in this final 

rule. We believe this increase in time is 

warranted because requests for 

reconsideration may be treated as a 

request for review by the CO. 

Additionally, final determinations may 

be delayed in the mails, and 

circumstances may arise that are beyond 

the control of the employer. 

c. Submittal of New Information in 

Reconsideration Requests 

One commenter pointed out the 

proposed rule did not specify whether 

an employer may submit new 

information when making a request for 

reconsideration. The commenter favored 

allowing employers to provide new 

information in the request for 

reconsideration. 

Practice under the current regulations 

does not contemplate consideration of 

new evidence in requests for 

reconsideration. This final rule merely 

codifies the current practice. 

d. Material Misrepresentation 

If the CO determines the employer 

made a material misrepresentation with 

respect to the application for any 

reason, the employer may be required to 

conduct supervised recruitment in 

future filings of labor certification 

applications for up to 2 years. 

As noted above, this final rule has 

been revised to provide that failure to 

provide supporting documentation will 

not automatically be deemed a material 

misrepresentation. The final rule states 

that failure to provide supporting 

documentation in response to an audit 

letter may result in supervised 

recruitment under § 656.21(a) or 

§ 656.24(e). Accordingly, § 656.24(f) of 

this final rule has been revised to 

provide that the employer may be 

required to conduct supervised 

recruitment pursuant to § 656.21 in 

future filings of labor certification 

applications for up to 2 years, if the CO 

determines that the employer 

substantially failed to produce 

supporting documentation, or the 

documentation was inadequate, or a 

material misrepresentation was made 

with respect to the application, or it is 

appropriate for other reasons. It should 

be noted, however, a CO may determine 

that supervised recruitment should be 

conducted, although the 2-year period 

for which an employer was required to 

conduct supervised recruitment has 

expired, for reasons unrelated to those 

supporting the original supervised 

recruitment requirement. 

Three commenters recommended 

stricter penalties for material 

misrepresentations, including 

debarment. 

Since we did not propose stricter 

penalties in the proposed rule, the final 

rule does not provide for any such 

penalties, such as debarment. As 

indicated above, we have concluded 

that before making major changes with 

respect to the imposition of penalties, 

we should publish any penalties we 

may be considering for notice and 

comment in a proposed rule. We will 

consider the imposition of stricter 

penalties in any future rulemakings 

involving the permanent labor 

certification program.

We have also decided not to make 

supervised recruitment mandatory for 

up to 2 years if the CO determines the 

employer made a material 

misrepresentation with respect to an 

application. Such a requirement would 

result in a determination of how 

resources would be allocated in the 

future, possibly resulting in a loss of 

flexibility to target audits in accordance 

with program experience, resources, and 

volume of applications to process. 

Q. Board of Alien Labor Certification 

Appeals Review, Consideration, and 

Decision Process 

1. Technical Changes 

Technical Changes were made to 

§ 656.27 to conform to § 656.41 which 

provides a request for review of a 

prevailing wage determination of a CO 

may be made to the Board of Alien 

Labor Certification Appeals (BALCA) 

within 30 days of the date of the 

decision of the CO. Section 656.27 

specifically provides that BALCA must 

review the denial of a labor certification 

under § 656.24, a revocation of 

certification under § 656.32, or an 

affirmation of a prevailing wage 

determination issued by the SWA under 

§ 656.41. 

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77363

2. Comments on Proposed Rule 

We received six comments on 

§§ 656.26 and 656.27 regarding the role 

of BALCA under the proposed system. 

The comments dealt with three issues: 

elimination of remands, the time 

allowed for filing requests for review, 

and enforcement. 

a. Elimination of Remands 

We received three comments opposed 

to the proposal to eliminate BALCA’s 

authority to remand cases to a CO for 

further consideration or fact-finding and 

determinations. AILA maintained 

eliminating BALCA’s authority to 

remand a case would violate the 

Administrative Procedure Act (APA), 

which requires every adjudicatory 

decision to be accompanied by a 

statement of findings and conclusions. 

Removing BALCA’s remand capability 

will violate basic, fundamental due 

process rights by removing the right of 

parties to be given notice and an 

opportunity to be heard concerning 

government decisions affecting their 

interests. AILA also noted we provided 

no basis for our stated reason for 

eliminating remands in the NPRM; 

namely, that cases would be sufficiently 

developed by the time they got to 

BALCA. AILA indicated its experience 

was just the opposite, and it is not 

uncommon for BALCA to reverse a CO’s 

decision and then remand the case 

because it had insufficient information 

in the record to simply approve it. 

Another commenter was of the 

opinion that cases under the proposed 

labor certification system will be less 

developed than they are in the current 

system when they reach BALCA, as the 

new system will eliminate assessment 

letters by the SWAs and NOFs, 

increasing the chance that cases will 

need further development when they 

are reviewed by BALCA. 

One commenter indicated if BALCA 

does not have remand capability, cases 

involving good faith but inadequate 

recruitment will be denied instead of 

being remanded for additional 

recruitment as they would be in the 

current system. 

After reviewing all of the comments, 

we have concluded BALCA should not 

have authority to remand cases to the 

CO. The processing model that 

underlies this rule does not contemplate 

the type of interchange between the 

employer and the Certifying Officer that 

is reflected in the current process; thus, 

it is not apparent what the Certifying 

Officer would do if a case were 

‘‘remanded.’’ Accordingly, the final rule 

does not allow for remands. 

b. Time Allowed to File Request for 

Review 

All those who commented on the 

issue opposed the proposal to reduce 

the time allowed for an employer to file 

a request with BALCA for review of a 

denial or revocation of certification from 

35 to 21 days. One commenter noted the 

reduced time may result in more cases 

being refiled because of missed filing 

dates for requesting review. AILA 

expressed the view that allowing 21 

days to file a request for review would 

not allow sufficient time to craft a 

proper request for review in light of the 

time lost in the mail between issuance 

of a denial and its receipt by an 

employer. AILA recommended the 35-

day period provided in the current 

regulations to file a request for review 

be retained. 

Another commenter noted one major 

purpose of the new system is to provide 

a mechanism for the adjudication of 

labor certifications, and observed 

employers are required to meet various 

35-day deadlines throughout the current 

regulations. This commenter suggested 

to make the entire system responsive, 

DOL should consider specific time 

limits for completing its review. 

As with the other 21 day deadlines in 

the proposed rule, we have increased 

the time allowed to file a request for 

review to 30 days in this final rule. We 

believe the time that may be lost in the 

mail and the time and effort to craft a 

request for review justifies such an 

increase. We have concluded 30 days 

should be sufficient time to file requests 

for review because employers should 

have the factual material to support a 

request for review readily at hand. 

We have decided not to impose 

deadlines on our review activity. There 

is no statutory requirement that we 

complete our review activity within a 

specified period of time. Further, we do 

not have control over the allocation of 

resources that might be necessary to 

adequately respond to an increase in the 

number of applications filed by 

employers. 

c. Only Employer Can Request Review 

We received no comments opposing 

our proposal that only employers be 

allowed to request review of a denial or 

revocation of a labor certification. 

Accordingly, this final rule provides, as 

did the NPRM, that only the employer 

may request review of a denial or 

revocation of a certification. 

d. Debarment of Employers 

The AFL–CIO believed in cases where 

employers using the labor certification 

program violate labor and employment 

laws, they should be debarred from 

using the permanent labor certification 

program for a period of years. We have 

concluded providing for a penalty such 

as debarment should not be made 

without publishing it for notice and 

comment in a proposed rule. Therefore, 

we are not making the requested change 

in this final rule. 

R. Validity of and Invalidation of Labor 

Certification: Substitution of Alien 

Beneficiaries and Issuance of Duplicate 

Labor Certifications 

1. Substitution of Alien Beneficiaries

The proposed regulations would 

conform the provisions of 20 CFR 

656.30(c) to the decision of the U.S. 

Court of Appeals for the District of 

Columbia in Kooritzky v. Reich, 17 

F.3rd 1509 (DC Cir. 1994) and DOL’s 

operating practice after the U.S. Court of 

Appeals decision striking down the no 

substitution rule. 

Our program experience, however, 

indicates the current practice of 

allowing substitution of alien 

beneficiaries on approved labor 

certifications may provide an incentive 

for fraudulent labor certification 

applications to be filed with the 

Department. For example, labor 

certifications have been submitted on 

behalf of nonexistent employers, 

submitted without the knowledge of the 

employer, or submitted on behalf of 

employers who are paid for the use of 

their name. In many cases, the named 

alien on the application may be 

fictitious or the same named alien may 

be used on many labor certification 

applications. Once an application is 

certified, it can be marketed to an alien 

who is willing to pay a considerable 

sum of money to be substituted for the 

named alien on the certified 

application. 

The sale, barter or purchase of labor 

certifications is not condoned or 

approved by the Department. The 

Department has concluded the 

secondary market in approved labor 

certifications that has developed merely 

to facilitate the entry of an alien who is 

willing to pay a substantial sum of 

money to obtain permanent resident 

status is not consistent with the purpose 

of the labor certification statute at 

section 212(a)(5)(A) of the INA and the 

Department’s labor certification 

regulations at 20 CFR part 656. The 

Department will be exploring in the 

near future regulatory solutions to 

address this issue. In the interim, we 

plan to implement the measures 

described in this final rule to check the 

bona fides of the employer applicant. 

77364 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

We received a few comments in 

support of allowing substitution of alien 

beneficiaries. 

2. Issuance of Duplicate Labor 

Certifications 

AILA requested DOL revise the 

process for obtaining copies of approved 

labor certifications. Currently, the 

employer, alien, or agent may request a 

copy of the approved labor certification 

only through DHS or a Consular Officer. 

AILA stated it understood DOL needs 

to ensure labor certifications are 

safeguarded from fraudulent uses, but 

noted the current process takes an 

inordinately long time. We agree with 

AILA that a more efficient system for 

issuing duplicate labor certifications can 

be developed without losing existing 

safeguards to prevent the fraudulent use 

of duplicate certifications. Therefore, 

this final rule amends the existing 

regulation at § 656.30(e) by adding an 

additional means of requesting a 

duplicate labor certification. The CO 

may issue a duplicate labor certification 

to a Consular or Immigration Officer at 

the request of the employer or the 

employer’s attorney. The employer’s 

request for a duplicate labor 

certification must be addressed to the 

CO who issued the labor certification. 

The employer’s request must (1) contain 

documentary evidence from the 

Consular or Immigration Officer that a 

visa application or visa petition, as 

appropriate, has been filed and (2) 

include a Consular Office or DHS 

tracking number. 

S. Labor Certification Applications 

Involving Fraud or Willful 

Misrepresentation

Most of the comments on the section 

of the proposed rule dealing with labor 

certification applications involving 

fraud or willful misrepresentation have 

been discussed above. 

The proposed regulation carried over 

the provisions of the current regulations 

and included an alternative provision 

that provided ‘‘(i)f 90 days pass without 

* * * receipt of a notification from 

[DHS] that an investigation is being 

conducted, the CO must continue to 

process the application.’’ However, we 

are broadening this section to 

encompass investigations being 

conducted by other appropriate 

authorities. 

We received two comments about the 

procedures to be followed with respect 

to applications that are referred to DHS 

for investigation. AILA was under the 

impression that processing of 

applications would be suspended 

indefinitely, pending a formal 

notification from DHS as to whether it 

will be pursuing a formal prosecution; 

however, this is not the case. The 

proposed rule clearly provided that 

processing is continued if 90 days pass 

without the filing of a criminal 

indictment or information, or without 

being advised by DHS that an 

investigation is being conducted. 

FAIR believed the proposed 

regulation providing for a 90-day 

suspension of processing (as in the 

current regulations) should be 

eliminated. FAIR maintained it is 

arbitrary to expect investigations 

sufficient for criminal investigation or 

civil suits to be completed in 90 days. 

FAIR’s comments are consistent with 

our program experience in 

administering the current regulation 

requiring processing of an application 

that has been referred to DHS. In the 

overwhelming majority of cases, DHS 

does not provide us with any 

information as to what action it may 

have taken with respect to the 

application we referred for 

investigation. Our experience indicates 

it may take DHS longer than 90 days to 

investigate a matter involving possible 

fraud or misrepresentation and to 

determine whether to file a criminal 

indictment or information. Due to the 

concerns expressed about fraud by 

many commenters, and because it is 

conceivable another investigatory 

agency could be investigating a matter 

referred for investigation, this final rule 

provides that after a matter is referred to 

DHS for investigation, if 90 days pass 

without the filing of a criminal 

indictment or information, or receipt of 

a notification from DHS or any other 

investigatory body that an investigation 

is being conducted or that it intends to 

start an investigation in the foreseeable 

future, the CO may continue to process 

the application. 

In light of the general concerns voiced 

about fraud by commenters we have 

deleted the requirement that if a matter 

is referred to the DHS for investigation, 

the CO must notify the employer, and 

send a copy of the notification to the 

alien. Such notification may undermine 

the purpose of the investigation. 

T. Revocation of Approved Labor 

Certifications 

Under the proposed rule, the CO 

would have limited authority to revoke 

labor certifications within 1 year of the 

date the certification was granted or 

before a visa number becomes available 

to the alien beneficiary, whichever 

occurs first (see § 656.32 in this final 

rule). The proposed rule specified the 

steps the CO who issued the 

certification, in consultation with the 

Chief, Division of Foreign Labor 

Certification, would have to take to 

revoke a labor certification 

improvidently granted.

Several commenters urged DOL to 

reconsider this provision. Most of the 

commenters objected to the provision 

either in whole or in part. Some felt the 

provision was unnecessary because 

sufficient enforcement measures are 

currently in place. Others felt revocation 

should be limited to cases involving 

fraud or willful misrepresentation. Most 

of the commenters asked DOL to 

articulate the procedural and 

substantive standards under which 

certification could be revoked. 

1. Criteria for Revoking Labor 

Certifications 

Many commenters requested we 

develop standards and criteria for 

revoking labor certifications and define 

‘‘improvidently granted.’’ Some of these 

commenters also expressed concern that 

employers would have no certainty in 

the workplace unless they knew the 

criteria by which this provision will be 

enforced. 

A few commenters suggested the only 

valid reason for revoking a labor 

certification once it has been granted is 

if the employer had submitted a 

fraudulent application or willfully 

misrepresented its case. One commenter 

suggested DOL should not be allowed to 

revoke a labor certification based upon 

layoffs or changes in market conditions 

after the certification. Another 

commenter stated there are innumerable 

reasons why a visa might not be 

received within 1 year, including 

increasing delays at the DHS and U.S. 

consulates, and that it is unfair to have 

the fate of an application depend on 

circumstances beyond the control of the 

petitioner and beneficiary. 

After reviewing all the concerns 

expressed about possible fraud in the 

permanent labor certification program 

by commenters, we have determined it 

would be inappropriate for Certifying 

Officers to have only a limited right to 

revoke a labor certification. Therefore, 

this final rule provides that a labor 

certification can be revoked if the 

Certifying Officer finds the labor 

certification was not justified, instead of 

improvidently granted as would have 

been provided by the proposed rule. 

This change in the final rule will allow 

the CO to revoke a labor certification for 

any ground that would have resulted in 

a denial of the Application for 

Permanent Employment Certification,

whether unintentional or willful. 

2. Time Limit for Revocation 

One commenter pointed out the time 

limit for revocation should not be ‘‘until 

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77365

the visa number becomes available,’’

because all employment-based 

preferences are now current. This 

commenter suggested the limit should 

be ‘‘until the I–140 is approved’’ or 

‘‘until the I–485 is filed’’ or ‘‘until a 

change of status is granted.’’ In addition, 

FAIR urged us to eliminate the 1-year 

limit on revocation. 

We have determined since this final 

rule will provide the Certifying Officer 

with the authority to take steps to 

revoke a labor certification for fraud and 

willful misrepresentation, obvious 

errors, or for grounds or issues 

associated with the labor certification 

process, there should not be any time 

limit on the authority of the Certifying 

Officer to revoke a labor certification. 

3. Consultation With National Certifying 

Officer 

We have also determined that a 

provision in the regulations for 

consultation with the National 

Certifying Officer before steps to revoke 

be taken by the Certifying Officer is not 

necessary since communication and 

oversight of application processing and 

granting of certifications will be greatly 

enhanced under the new permanent 

labor certification system. Applications 

for permanent employment certification 

will not be processed in regional offices, 

but in two ETA application processing 

centers. The Directors of the ETA 

application processing centers will 

report directly to the Chief, Division of 

Foreign Labor Certification rather than 

to regional administrators. Accordingly, 

this final rule does not provide that 

steps to revoke a labor certification have 

to be taken in consultation with the 

National Certifying Officer. Provision 

for such consultation, if it is necessary, 

can be provided for administratively. 

U. Prevailing Wages 

The NPRM proposed a number of 

changes to the regulations governing the 

determination of prevailing wages. 

These changes apply to both the 

permanent labor certification program 

and the H–1B and H–1B1 nonimmigrant 

programs. The specific changes are 

discussed below. 

1. Application Process 

The NPRM proposed to standardize 

the prevailing wage determination 

process by requiring employers to 

submit a PWDR to the SWA on a 

standardized form, the ETA Form 9088. 

A number of commenters had questions 

about the contents of the ETA Form 

9088. Most questions concerned how 

changes would be made to the job 

description and how the ETA Form 

9088 would be matched to the 

Application for Permanent Employment 

Certification (ETA Form 9089). 

As explained in our discussion to 

consolidate the ETA 9088 and ETA 9089 

into a single application form, under 

this final rule, the employer will request 

a prevailing wage determination using 

the form required by the state where the 

job opportunity is located. Information 

from the proposed PWDR form, such as 

the prevailing wage, occupational code 

and level of skill, job title, state 

prevailing wage tracking number, and 

the date the determination was made 

will be included on the ETA Form 9089. 

The state workforce agency PWDR form 

must be retained by the employer, and 

will be submitted only if the application 

is selected for an audit or as requested 

by the CO. 

2. Prevailing Wage Determination 

Response Time 

A few commenters stated the 

proposed rule should incorporate 

various time limits for the processing of 

PWDR’s. 

One commenter expressed concern 

that the proposed rule favors the OES 

survey over published salary surveys, 

because it will most likely take longer 

for an employer to get a PWD if the 

employer relies on a published salary 

survey. As a result, employers would be 

pushed into using the OES survey to 

obtain an earlier immigrant visa priority 

date for their employees. 

We are not imposing specific 

timeframes on SWAs for making their 

PWD, as recommended by several 

commenters. Because there is no set 

level of resources for funding this 

activity, and because it is unclear how 

many challenges and requests for PWD 

will be received, we believe imposing 

specific timeframes would be 

inappropriate. We anticipate SWAs will 

operate in as expeditious a manner as is 

possible. 

Regarding the concern that a PWD 

based on employer-provided surveys 

will take longer than determinations 

based on OES surveys, we believe the 

difference is warranted. It takes SWA 

staff much longer to complete a 

determination based upon employerprovided wage data. A determination 

based on an alternative survey requires 

a review by the SWA of the statistical 

methodology used in conducting the 

survey, including a determination as to 

whether the survey data is based upon 

a representative sample.

3. Validity Period of Prevailing Wage 

Determinations 

A few commenters requested DOL 

address the validity period for PWDs. 

One commenter questioned allowing 

SWAs to establish validity periods 

between 90 and 365 days. The 

commenter stated employers could not 

be expected to conduct and complete 

recruitment within 90 days of receipt of 

a PWD, particularly when involved in 

ongoing recruitment for multiple 

positions. The commenter urged DOL to 

amend the proposed rule so all PWDs 

remained valid for at least 1 year. 

Another commenter asked about the 

validity period for a PWD based on the 

Davis Bacon Act (DBA), Service 

Contract Act (SCA), a collective 

bargaining agreement (CBA), or an 

employer-provided or published survey. 

A SWA strongly recommended all 

prevailing wage determinations, 

whether based on the OES, DBA, SCA, 

a CBA, or employer-provided or 

published survey, be valid for the same 

amount of time. 

This final rule makes no substantive 

changes with respect to validity dates as 

proposed in the NPRM. The SWA must 

specify the validity of the prevailing 

wage, which in no event may be less 

than 90 days or more than 1 year from 

the date of the determination. 

Employers are required to file their 

applications or commence the required 

pre-filing recruitment within the 

validity period specified by the SWA. 

One commenter believed the 

proposed rule was ambiguous about the 

prevailing wage to be paid to employees 

who immigrate based on a permanent 

labor certification. The commenter 

stated it appears that the intent of the 

proposed rule was for the prevailing 

wage to be paid upon the employee’s 

immigration or adjustment of status, but 

it was unclear whether the wage to be 

paid is the prevailing wage determined 

pursuant to § 656.40 or the prevailing 

wage at the time of immigration or 

adjustment of status. 

With respect to this last comment, we 

note the employer must certify on the 

ETA Form 9089 (see item N.1 under 

Employer Declaration) as follows: ‘‘The 

offered wage equals or exceeds the 

prevailing wage and the employer will 

pay the prevailing wage from the time 

permanent residency is granted or from 

the time the alien is admitted to take up 

the certified employment’’. This is 

essentially the same policy expressed on 

page 34 of Technical Assistance Guide 

No. 656 Labor Certifications.

4. Collective Bargaining Agreement, 

Davis Bacon Act, and Service Contract 

Act 

The proposed rule eliminated the 

mandatory use of DBA and SCA wages, 

where applicable. Several commenters, 

including some SWAs and AILA, 

supported this proposal. These 

77366 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

commenters felt the DBA and SCA were 

suitable for government contracts but 

not for other situations, and the OES 

was a more realistic basis for making a 

PWD. Labor unions and other 

commenters, on the other hand, 

believed the proposed approach would 

undercut protections for U.S. workers. 

The AFL–CIO and the Laborers’

International Union of North America 

(LIUNA) contended that, despite DOL’s 

assertions to the contrary, the proposed 

approach would decrease administrative 

convenience for SWAs and DOL. The 

International Brotherhood of Bricklayers 

and Allied Craftworkers added 

administrative convenience was but one 

reason for using the DBA and SCA wage 

determinations, the other being to 

ensure offers of employment do not 

undercut local wages.

The AFL–CIO also disputed DOL’s 

assertion that BALCA’s decision in El 

Rio Grande on behalf of Galo M. Narea

(1998–INA–133, February 4, 1998; 

Reconsideration July 28, 2000) 

compelled DOL to reconsider its 

practice of using DBA and SCA wage 

determinations for alien labor 

certifications. The AFL–CIO argued 

BALCA’s reference in El Rio Grande to 

the availability of ‘‘other information’’

that was a better source for determining 

prevailing wages than the SCA did not 

justify a change in DOL practice, and 

maintained determinations based on the 

SCA wage are more reliable than those 

based solely on OES wages. 

The International Union of Operating 

Engineers (IUOE) and LIUNA pointed to 

DOL presentations and public 

information describing the strengths and 

weaknesses of the OES survey and the 

National Compensation Survey (NCS) to 

support its argument that the NCS is 

superior to OES. The IUOE noted 

problems with using the OES survey: 

OES data does not provide occupational 

work levels, use of OES data results in 

the underestimation of wages of workers 

in seasonal jobs, and OES data does not 

include fringe benefit data. The IUOE 

also suggested employers would choose 

the methodology that produced the 

lowest wage rates. LIUNA identified 

other concerns about the OES survey’s 

reliability, capacity for determining 

median and mean wages, and ability to 

collect data for work levels. LIUNA also 

provided specific examples in which 

OES wages would undercut the SCA or 

DBA wage determinations. 

The AFL–CIO defended use of the 

DBA, stating that DBA surveys produce 

a true ‘‘prevailing wage,’’ that is, a wage 

rate paid more frequently to workers 

employed in the same job than any 

other wage rate paid in the same 

locality. LIUNA added DBA ‘‘universe’’

surveys of the construction trades are 

more reliable than the OES survey 

because DBA surveys collect wage data 

not only by job classification, but by 

type of construction job, which varies 

widely. 

One SWA supported condensing 

surveys into collective bargainingderived wages and OES-derived wages. 

However, the commenter cautioned that 

until OES could provide coverage for 

more occupations, particularly in 

domestic service, SCA determinations 

should continue. 

Two commenters agreed with the 

provision in the proposed rule that 

employers be allowed to use DBA and 

SCA wage rates as alternatives to OES 

wages. AILA asked the final rule specify 

that SCA and DBA wages be prima facie 

evidence of the prevailing wage, should 

the employer choose to rely on either of 

these two sources. 

We have concluded that, while the 

use of DBA and SCA as wage data 

sources of first resort should be 

eliminated as proposed, employers 

should have the option of using this 

data at their discretion. We believe the 

continued mandatory use of SCA and 

DBA determinations would continue to 

complicate the operation of the 

prevailing wage system because of the 

differing occupational taxonomies 

between OES and DBA/SCA. 

The suggestion that SCA 

determinations be retained because SCA 

wages are more ‘‘accurate’’ is not 

compelling. In many instances SCA 

determinations are based upon data 

from the NCS. While the NCS is an 

excellent, albeit very expensive, source 

of wage data based on on-site data 

collection by trained staff, it is limited 

in scope. Only about 450 occupations in 

approximately 85 geographic locations 

are covered, and not all occupations are 

included in each geographic area. Thus, 

the NCS is inadequate as a sole source 

for prevailing wages for the permanent 

labor certification program, which must 

deal with a myriad of occupations 

across the nation. In addition, SCA wage 

determinations start with data from the 

NCS, but also incorporate OES data. The 

SCA also uses a concept known as 

‘‘slotting’’ when determining a wage for 

an occupation/area combination for 

which they have no data. In slotting, 

wage rates for an occupational 

classification are based on a comparison 

of equivalent or similar job duties and 

skill characteristics between the 

classification studied and those for 

which no survey data is available. It 

would be difficult, if not impossible, to 

segregate those SCA surveys that are 

‘‘better;’’ i.e., purely NCS-based from 

those that use slotting. We do not 

believe retaining this level of 

complexity in the prevailing wage 

determination process is warranted. 

We have adopted AILA’s 

recommendation that if an employer 

chooses to rely on a SCA or DBA wage, 

that wage generally will be considered 

prima facie evidence of the prevailing 

wage. The SWA will not question the 

employer’s use of the SCA or DBA 

survey as long as it is applied in an 

appropriate manner. However, should 

an employer attempt to apply a SCA or 

DBA wage in an inappropriate manner 

(e.g., by using the wrong occupational 

classification, geographic area, or level 

of skill), the SWA will not accept it as 

an alternative to the OES wage. At that 

point, the employer will be free to 

challenge the SWA’s rejection of the 

SCA or DBA determination by 

requesting a review by the Certifying 

Officer. 

5. Elimination of 5 Percent Variance 

The overwhelming majority of the 

commenters opposed the proposed 

elimination of the 5 percent variance. 

Much of the opposition was driven by 

the commenters’ viewpoint that a 

margin of error is required when dealing 

with large surveys, such as the OES 

survey, that consolidate various 

sampling points for simplification and 

are based on historical data that may not 

represent present market conditions. 

Commenters believed a variance is 

needed to compensate for sampling 

errors, to enable employers to take into 

account varying levels of worker 

experience and qualifications, and to 

allow employers to tailor wages to 

current economic conditions. 

FAIR and a SWA prevailing wage 

specialist supported the proposed 

elimination of the 5 percent variance. 

Two other commenters suggested the 

variance be increased to incorporate 

discretionary bonuses and commissions 

that are included as part of the wages 

paid in OES surveys. Two commenters 

requested clarification on whether the 

regulations eliminate the 5 percent 

variance for employer-conducted wage 

surveys and other published surveys. 

Several commenters emphasized that 

eliminating a variance may compel 

employers to pay foreign workers more 

than U.S. workers. A university medical 

center commented the 5-percent 

variance amounted to a substantial part 

of its limited funding. Another 

university observed that elimination of 

the variance would result in decreased 

hiring of post-doctoral research fellows. 

A few commenters stated a 5 percent 

variance was essential for the nonprofit 

sector, given the absence of realistic 

prevailing wage figures for nonprofit 

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77367

organizations in current surveys. These 

commenters alleged that, because DOL 

has not created a separate wage system 

database for nonprofits, institutions 

should be allowed to use private 

surveys. A few academic institutions 

also requested DOL recognize 

alternative wage surveys.

Some commenters predicted a rise in 

complaints and disputes over PWDs, 

resulting in increased work for SWAs. 

Other commenters viewed the 

elimination of the variance as an unfair 

burden on small businesses struggling to 

meet current wage determinations and 

that they will be unable to remain 

competitive. 

Evaluation of these comments has 

been rendered unnecessary by the 

enactment of the Consolidated 

Appropriations Act of 2005 which 

amended the INA (Section 212(p)(3), 8 

U.S.C. 1182(p)(3)) to require, ‘‘the 

prevailing wage required to be paid 

pursuant to (a)(5)(A), (n)(1)(A)(i)(II) and 

(t)(1)(A)(i)(II) shall be 100 percent of the 

wage determined pursuant to those 

sections.’’ Therefore, the Department 

must eliminate the practice of allowing 

a 5 percent variance of the wage actually 

paid. 

6. Skill Levels in Prevailing Wage 

Determinations 

a. Number of Skill Levels 

The NPRM generated considerable 

comments concerning the fact that the 

OES wage surveys provide only two 

levels of wages. Many commenters 

criticized the OES survey for arbitrarily 

dividing salary data into two wage 

levels. Several commenters (including 

AILA and ACIP) suggested existing OES 

wage data would be more useful if the 

number of wage levels were expanded 

to appropriately differentiate among 

various occupational groupings. 

Evaluation of these comments is 

rendered unnecessary by the enactment 

of the Consolidated Appropriations Act 

of 2005 which amended the INA 

(Section 212(p), 8 U.S.C. 1182(p)) to 

provide:

Where the Secretary of Labor uses, or 

makes available to employers, a 

governmental survey to determine prevailing 

wage, such survey shall provide at least 4 

levels of wages commensurate with 

experience, education, and the level of 

supervision. Where an existing government 

survey has only 2 levels, 2 intermediate 

levels may be created by dividing by 3 the 

difference between the two levels offered, 

adding the quotient thus obtained to the first 

level, and subtracting that quotient from the 

second level.

b. Inconsistency Among State Workforce 

Agencies in Assigning Skill Levels 

Several commenters alleged there was 

inconsistency among SWAs in assigning 

wage levels. To address this issue, we 

have provided training sessions to SWA 

staff involved in making PWDs. We 

have also issued several policy 

directives to inform SWA staff and other 

interested parties how the regulations 

governing the prevailing wage process 

should be interpreted on this particular 

issue. We will continue to issue 

guidance to the field as necessary, 

including guidance concerning the 

requirements of the recently enacted 

legislation. 

c. Academic Institutions 

A few universities felt the criteria 

currently used by SWAs to differentiate 

between Level I and Level II wage level 

positions, as well as OES survey 

methodology were inappropriate for 

academic settings. According to the 

commenters, for academic positions, 

OES data are inapplicable because (1) 

occupational ranking is a foundational 

element, (2) advanced degrees do not 

necessarily correlate with practical 

experience, and (3) entry-level 

personnel operate with a great degree of 

independence and little supervision. 

Several academic institutions also 

challenged the SWA’s automatic 

designation of Level II to jobs that 

require an advanced degree. 

Evaluation of these comments is 

rendered unnecessary by the enactment 

of the Consolidated Appropriations Act 

of 2005 which amended the INA 

(Section 212(p), 8 U.S.C. 1182(p)) and 

mandates the use of 4 levels. 

7. Employer-Provided Wage Data 

Some commenters applauded DOL’s 

proposal to consider employer-provided 

alternative wage surveys, and offered 

alternative surveys they felt DOL should 

promote for use in determining 

prevailing wages. 

ACIP requested DOL clarify what 

survey methodologies would be 

acceptable and what latitude employers 

would be allowed in using published 

surveys, particularly regarding survey 

data gathered for uses other than alien 

labor certification. Both AILA and ACIP 

remarked the responsibility for 

determining whether an employerprovided survey is suitable should not 

rest with the SWA. ACIP requested DOL 

authorize SWAs to automatically accept 

applicable surveys if they had been 

submitted and approved for use in 

previous applications. 

ACIP also recommended the Bureau 

of Labor Statistics (BLS) be considered 

a viable source for prevailing wages for 

cases in which the job classification is 

included in the BLS survey. ACIP 

contended SWAs currently reject the 

BLS survey as a prevailing wage source 

primarily because the data include only 

one skill level for each occupation, and 

the survey uses a median wage rather 

than a weighted average. However, ACIP 

observed this one-wage level BLS 

survey provides more accurate 

prevailing wage rate estimates for a 

given occupation than the two-level 

OES system.

ACIP criticized the OES survey for 

violating DOL standards for acceptable 

employer-provided surveys. Therefore, 

ACIP requested that such flexibility be 

afforded employers; e.g., that employers 

be allowed to use mathematical 

modeling to generate data for the 

current timeframe or for a particular 

location. Similarly, AILA also 

considered the OES survey to be flawed 

because it includes discretionary 

bonuses, commissions, cost-of-living 

allowances, incentive pay, and piece 

rates, all of which are contrary to DOL’s 

protocol for determining prevailing 

wages. Furthermore, AILA criticized the 

OES survey for failing to provide a 

weighted average or median of wages, 

and for listing the number of workers 

that fit into pre-defined wage ranges 

rather than including specific salaries of 

each surveyed worker. 

AILA suggested that in cross-industry 

surveys, DOL should also endorse the 

use of other reliable surveys. One 

commenter suggested any standard 

published survey should be accepted so 

that employers do not need to wait for 

extended periods to get their surveys 

reviewed. 

One commenter urged DOL to 

distinguish between employer-generated 

and independent surveys, stating only 

credible independent surveys ought to 

be recognized, along with prevailing 

wage surveys conducted by reputable 

employers. Another commenter 

opposed the use of employer-provided 

alternative surveys unless the employer 

could guarantee that the surveys were as 

accurate as the current OES data. One 

commenter expressed the view that 

SWA personnel were not qualified to 

review employer-provided wage data. 

We do not agree with the comments 

from AILA and ACIP suggesting 

responsibility for determining the 

suitability of employer-provided 

surveys be taken away from the SWAs. 

SWAs have historically had a direct role 

in determining the prevailing wage for 

each application filed under the 

permanent labor certification program. 

This role has always encompassed not 

only the application of DBA or SCA or 

77368 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

CBA wage determinations, but also 

review of any employer-provided 

alternative wage data. Even though the 

SWAs will no longer process individual 

labor certification applications under 

the new system, employers will 

continue to request SWA review of 

alternative sources of wage data under 

the nonimmigrant programs 

administered by DOL. This will require 

DOL to fund and maintain individuals 

with the necessary expertise at the SWA 

level. At this time, we consider 

continuing the SWA role in the 

prevailing wage determination process 

useful in maintaining the integrity of the 

labor certification program and to 

permit the Secretary of Labor to fulfill 

her statutory responsibility to certify 

that the employment of the alien will 

not adversely affect the wages and 

working conditions of workers similarly 

employed. However, it is possible that 

the results of our audit experience 

under the streamlined labor certification 

system and the program experience we 

will obtain may provide information 

that will help us to determine whether 

the role of the SWA in reviewing 

employer-provided surveys and in other 

aspects determining prevailing wages 

should be modified or eliminated. 

We will continue to provide training 

opportunities and materials to the 

appropriate SWA staff on a periodic 

basis, and will issue administrative 

policy clarification and procedural 

guidance as necessary to insure the 

prevailing wage determination process 

operates efficiently and consistent with 

established policies and procedures. 

Similarly, we reject the suggestion 

that alternative sources should not be 

permitted because SWA personnel are 

not qualified to gauge the statistical 

acceptability of surveys. On the 

contrary, SWA personnel involved in 

the prevailing wage determination 

process are individuals with expertise 

in this program area. 

We believe as long as the employerprovided survey meets the criteria 

outlined in § 656.40(g) of the 

regulations, or that were described in 

section J of GAL 2–98 or other guidance 

issued by ETA, the survey should be 

accepted by the SWA. It would be 

extremely difficult, if not impossible, to 

make any blanket determinations as to 

what published surveys are or are not 

credible and independent, or which 

employers are believed to be reputable 

or not. 

With respect to the suggestion by 

ACIP that previously submitted and 

approved surveys be automatically 

accepted for future applications, we 

believe that even if the use of a 

particular survey has been approved in 

the past, the SWA will still be required 

to do some minimal review to ensure 

the survey is being applied 

appropriately with regard to the 

occupational classification, geographic 

area, level of skill, etc. in the current 

application. However, we encourage 

SWAs to maintain records of approved 

surveys and to keep the review of 

previously accepted surveys to the 

absolute minimum necessary, without 

an extensive review of the statistical 

methodology and other factors that are 

not likely to differ across multiple 

reviews of the same survey.

We have accepted ACIP’s 

recommendation that SWAs should 

accept those BLS surveys that include 

only one skill level for each occupation 

and use a median wage rather than a 

weighted average. A private survey that 

provides one overall average for an 

occupation is acceptable under the new 

system (as it is under the current 

system). If the survey contains usable 

wage data for varying levels of skill or 

responsibility within the occupation, 

then the appropriate wage level must be 

used. The SWAs should be following 

the same policy with respect to BLS 

surveys as with any other employerprovided wage data submitted for 

review. We will furnish appropriate 

guidance to the SWAs so they will 

accept BLS surveys, as well as private 

surveys, that include only one skill level 

for each occupation and use a median 

wage rather than weighted average. 

We do not agree with the assertion by 

ACIP that the OES survey methodology 

violates the standards currently in force 

governing the acceptability of 

alternative sources of wage data. Along 

similar lines, we reject AILA’s 

contention that the OES survey is 

flawed due to the inclusion of 

discretionary bonuses, commissions, 

cost-of-living allowances, etc. The wage 

component of the OES survey measures 

the average rate of wages that were 

actually paid to workers in the area of 

intended employment in the survey 

year’s sample. Under the current policy, 

as long as payments to a worker that is 

the beneficiary of a labor certification 

application are guaranteed by the 

employer, they can be included in 

determining whether the wage offered 

by the employer equals or exceeds the 

prevailing wage then in effect. 

With respect to AILA’s criticism that 

the OES survey fails to provide a 

weighted average or median and that it 

does not include the specific salaries of 

each surveyed worker, we believe the 

methodology employed in the OES 

survey is statistically rigorous and 

defensible. The OES calculated mean 

wage is the estimated total wages for an 

occupation divided by its weighted 

survey employment. With the exception 

of the upper-ended wage interval, a 

mean wage value is calculated for each 

wage interval based on the occupational 

wage data collected by the BLS Office of 

Compensation and Working Conditions. 

The mean wage value for the upper 

open-ended interval is its lower bound 

(Winsorized mean). These interval mean 

wage values are then attributed to all 

workers reported in the interval. For 

each occupation, total weighted 

averages in each interval are summed 

across all intervals and divided by the 

occupation’s weighted survey 

employment. Collecting wage data by 

interval allows BLS to survey a large 

number of employers while minimizing 

the burden on those employers. The 

distribution of workers within the wage 

ranges is used in both the calculation of 

the mean wages, and the calculation of 

relative errors. These reliability 

statistics are published with the wage 

estimates. 

We further reject the suggestion that 

employers guarantee alternative sources 

of wage data are as accurate as current 

OES data. When we adopted use of the 

OES survey (with a dramatically smaller 

number of occupational categories than 

were available under the DOT), we felt 

it was vitally important to provide 

employers with alternative choices of 

data sources. 

The final rule provides, at § 656.40(g), 

that unless the job opportunity is 

covered by a CBA, or by a professional 

sports league’s rules or regulations, the 

SWA must consider employer-provided 

wage data in determining the prevailing 

wage. The use of such employerprovided data is an employer option. 

The SWA’s role is merely to determine, 

based upon whether the survey meets 

the acceptability criteria set forth in the 

regulations and that were in section J of 

GAL 2–98 or other guidance issued by 

DOL, whether the employer-provided 

survey is adequate, not whether it is 

more (or less) accurate than the OES 

survey. 

8. Use of Median 

Several commenters commended 

DOL’s proposal to allow the use of 

surveys that provide median prevailing 

wages in the absence of the currently 

required mean or weighted average 

under current regulation. One 

commenter opposed the use of a median 

prevailing wage, stating it would not 

necessarily represent the average wage 

of the workers surveyed. 

The median is an acceptable measure 

of central tendency widely used by 

organizations, including statistical 

agencies such as BLS, in determining 

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77369

average rates of wages. Use of the 

median will only be permitted in the 

absence of an arithmetic mean. We do 

not wish to rule out wage surveys that 

are otherwise acceptable in terms of the 

statistical methodology employed, but 

were unacceptable under current 

regulations solely due to the use of the 

median (as opposed to the mean) wage. 

9. Definition of Similarly Employed 

Under the proposed rule, use of a 

geographic area broader than the 

commuting distance is acceptable if a 

representative sample of ‘‘similarly 

employed’’ workers in the area of 

intended employment can not be 

obtained. AILA considered this proposal 

beneficial, because it allows employers 

to default to CMSA or statewide data 

when a corresponding MSA survey has 

an inadequate sample size. Despite this 

proposed change, AILA believed further 

adjustments would be needed because 

many reputable surveys start with the 

CMSA as the lowest geographical area. 

AILA also maintained although 

employees may not commute within the 

entire CMSA, these are wages that are 

reasonably uniform and therefore tend 

not to vary significantly from MSA data. 

AILA therefore requested that CMSA 

surveys be considered acceptable.

AILA’s recommendation concerning 

the CMSA is generally consistent with 

existing policy regarding the area of 

intended employment. However, we can 

not agree that CMSAs should always be 

considered as reflecting the area of 

intended employment and thus, an 

appropriate geographic scope for 

employer-provided wage data. Based on 

operational experience, we have 

determined that CMSAs can be too 

geographically broad to be used in this 

manner when more specific surveys are 

available. 

Although any location within a CMSA 

is not automatically deemed to be 

within normal commuting distance of 

the place of intended employment, as 

are locations within a PMSA, there are 

instances in which the use of a CMSAbased survey would be appropriate; e.g.,

if an employer can demonstrate it was 

not possible to obtain a representative 

sample of similarly employed workers 

within the MSA or PMSA based upon 

standard survey practices. Furthermore, 

if an employer is unable to obtain a 

representative sample at the MSA or 

PMSA level, the geographic base of the 

survey should be expanded. A CMSA 

survey will be accepted if the employer 

can demonstrate that all points on a 

particular survey are within normal 

commuting distance of the employer. 

Last, as noted in the response to 

question 16 from Attachment A to 

General Administrative Letter No. 1–00, 

Prevailing Wage Policy ‘‘Q’s & A’s’’

(May 16, 2000), if the OES survey uses 

a Level 2 (contiguous) area or, by 

implication, a Level 3 (statewide) or 4 

(nationwide) geographic area, a CMSA 

would be considered to be a reasonable 

alternative. We acknowledge that the 

terminology CMSAs and PMSAs are 

being replaced by OMB. However, we 

will continue to recognize use of these 

area concepts as well as their 

replacements. 

10. Transition of H–1B Workers from 

Inexperienced to Experienced 

Section 212(n)(1) of the INA (8 U.S.C. 

1182(n)(1)) requires an employer 

seeking to employ H–1B workers to 

attest it will comply with prescribed 

labor conditions. With respect to wages, 

the employer agrees it is offering and 

will offer during the period of 

authorized employment to H–1B 

workers wages that are at least the 

actual wage level paid by the employer 

to all other individuals with similar 

experience and qualifications for the 

specific employment in question, or the 

prevailing wage level for the 

occupational classification in the area of 

employment, whichever is greater, 

based on the best information available 

as of the time of filing the application. 

The corresponding provision regarding 

H–1B1 workers is in 8 U.S.C. 1182(t)(1). 

As explained in the statutory section 

above, DOL’s H–1B regulations were 

recently extended to the new H–1B1 

program. The statutory wage obligation 

is described at 20 CFR 655.731(a)(1), in 

part, as follows:

The actual wage is the wage rate paid by 

the employer to all other individuals with 

similar experience and qualifications for the 

specific employment in question. In 

determining such wage level, the following 

factors may be considered: Experience, 

qualifications, education, job responsibility 

and function, specialized knowledge, and 

other legitimate business factors.

* * * * *

Where there are other employees with 

substantially similar experience and 

qualifications in the specific employment in 

question, i.e., they have substantially the 

same duties and responsibilities as the H–1B 

nonimmigrant, the actual wage shall be the 

amount paid to these other employees.

The regulation continues: ‘‘The 

prevailing wage for the occupational 

classification in the area of intended 

employment must be determined as of 

the time of filing the application. The 

employer shall base the prevailing wage 

on the best information as of the time of 

filing the application.’’ 20 CFR 

655.731(a)(2). 

In the NPRM, the Department 

proposed to amend § 655.731(a)(2) to 

establish an additional requirement 

where an employer’s prevailing wage 

determination was based on a survey 

that set more than one wage rate for an 

occupation listed on the employer’s 

LCA. The Department proposed if an 

employer, in establishing its prevailing 

wage determination for the occupational 

classification, utilizes a survey that 

provides more than one wage rate or 

level for that classification, the 

employer is required to pay the H–1B 

worker at least the applicable wage rate 

for the level of work as described by the 

employer. In making this proposal, the 

Department stated that if, during the life 

of the LCA, an entry-level H–1B worker 

gains experience and the nature of his/

her work grows in responsibility, the 

applicable prevailing wage would be the 

wage set by the survey for the 

experienced level. 

Twenty-three commenters responded 

to the Department’s proposal. Although 

there was general support for the 

premise underlying the proposal, i.e., an 

H–1B worker should be paid at the wage 

level appropriate to his duties, the 

commenters generally opposed the 

notion that the H–1B wage attestation 

requirement relating to an employer’s 

prevailing wage obligation mandated 

the payment of multiple levels of wages. 

Commenters expressed the following 

views on the Department’s proposal: 

• The statute requires only the 

payment of the prevailing wage 

appropriate to the position at the time 

the determination is made; it remains 

static, not dynamic, as the proposal 

would require. 

• The appropriate response to a 

material change or increase in the duties 

of the H–1B worker is to obtain a new 

prevailing wage determination and LCA 

and file a new I–129 petition, not the 

response proposed by the Department. 

• The actual wage requirement of the 

wage attestation, not its prevailing wage 

prong, addresses the employer’s 

obligation to increase an H–1B worker’s 

pay where the worker gains experience.

• The proposal would require 

constant out-of-cycle review of H–1B 

wage rates by employers, perpetually 

ratcheting up H–1B salaries, with 

significant economic and paperwork 

concerns not addressed by the proposal. 

• The proposal is ambiguous as to 

whether a fixed time requirement for 

paying higher level wages would be 

imposed. 

• Employers are hampered by the 

predominant use of a two-level system 

in surveys, which often overstates the 

salary differential between the levels for 

some occupations. 

77370 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

• Multi-tiered wage levels should be 

set for each occupation to better reflect 

‘‘real world’’ experience. A two-tier 

wage level is unrealistic where an entry 

level job by its nature requires 

considerable independence (e.g., a 

teacher) or the salary for the second 

level is markedly higher, e.g., postdoctoral research fellow, medical 

resident, college instructor, marketing 

manager. 

• The proposed regulation would 

serve to elevate wages for H–1B 

nonimmigrant workers while doing 

nothing to elevate the wages of U.S. 

workers (treating aliens differently from 

U.S. workers). 

• The Department should preserve 

this and other H–1B issues for future 

rulemaking. 

As noted, AILA and Microsoft 

criticized the proposal as exceeding the 

Department’s statutory authority. As 

stated by AILA: ‘‘The statute clearly 

contemplates that the prevailing wage 

determination is made based on the 

information available at the time of 

filing the application, and NOT 

thereafter.’’ AILA continued: ‘‘[u]nder 

the statute, the higher of the actual wage 

or the prevailing wage as determined at 

the time of filing is the wage that is paid 

to the H–1B worker during the period of 

authorized employment. The statute 

neither authorizes, nor contemplates, 

review of the applicability of the 

prevailing wage to the position after the 

time of filing.’’ In a similar vein, 

Microsoft objected to the proposal as 

contrary to statute: ‘‘The statute 

specifically calls for the prevailing wage 

determination to be based on 

information that is available when the 

application is filed—not information 

that becomes available later during the 

life of the petition, if the H–1B 

nonimmigrant worker’s duties change. If 

the change in duties is sufficiently great, 

the employer should file a new H–1 

petition.’’ Microsoft also noted, 

however, that ‘‘DOL regulations already 

require the employer to pay the higher 

of the prevailing wage and actual wage. 

The employer is obligated to provide H–

1B nonimmigrant workers with any pay 

increases that its actual compensation 

system provides, and this obligation is 

ongoing throughout the life of the H–1B 

petition and LCA. The actual wage 

obligation is sufficient to ensure that 

employees receive pay increases in skill 

level.’’

Based on its review of the comments, 

the Department has decided not to 

implement the proposal. The 

Department does not share the view that 

the proposal would be inconsistent with 

the statute or necessarily pose all of the 

practical problems suggested by some of 

the comments. The Department does, 

however, believe the ‘‘actual wage’’

requirement in the current regulation 

and the requirement to file a new H–1B 

petition when the workers’ duties 

change are adequate to ensure that H–

1B workers receive the wages 

appropriate to their duties. In this 

regard, the Department notes the 

regulation expressly provides: ‘‘Where 

the employer’s pay system or scale 

provides for adjustments during the 

period of the LCA—e.g., cost of living 

increases or other periodic adjustments, 

or the employee moves to a more 

advanced level in the same 

occupation—such adjustments shall be 

provided to similarly employed H–1B 

nonimmigrants (unless the prevailing 

wage is higher than the actual wage).’’

20 CFR § 655.731(a)(1). The Department 

also notes the prevailing wage, even if 

it remains the required wage during an 

H–1B worker’s placement, will be 

adjusted upon the expiration of the LCA 

applicable to his or her employment. 

Since an LCA has a maximum length of 

three years, upon renewal a new 

prevailing wage will be established. 

We believe the current regulation will 

protect H–1B and H–1B1 workers and 

U.S. workers. By ensuring H–1B and H–

1B1 workers receive the full wages due 

them under the attestation, the 

Department protects against the erosion 

of wage or other conditions of 

employment available to U.S. workers. 

The regulations provide flexibility to 

employers in choosing from among the 

accepted survey methodologies in 

establishing the prevailing wage for a 

position to be filled under an LCA, thus 

eliminating or minimizing any concerns 

about the difficulties of establishing 

multiple levels of pay. The Department 

expects most employers are and will 

continue to be attentive to their 

obligation to adjust wages paid to the 

H–1B or H–1B1 worker if and when 

their duties and experience require an 

increase from their beginning required 

wage. If, upon investigation, questions 

arise about the appropriateness of the 

wage paid to an H–1B or H–1B1 worker, 

the Department will consider all the 

circumstances bearing on the questions, 

including the actual and written duties 

of the worker (at the time the 

employment began and as they may 

have changed over time), 

documentation submitted by the 

employer in connection with obtaining 

a prevailing wage determination, the 

data provided to the employer through 

the survey it utilized, and the effect 

upon an H–1B or H–1B1 worker’s 

wages, if any, of adjustments in the 

employer’s actual wage system. As 

appropriate, the Department will order 

an employer to pay back wages, and 

direct further relief to remedy any 

violation of the wage attestation.

11. Submission of Supplemental 

Information 

One commenter stated that allowing 

limited opportunities to resubmit 

PWDR’s would save time, as employers 

currently submit repeated requests in 

order to secure a different PWD. 

Another commenter stated the proposed 

regulations encourage employers to 

resubmit cases to get better prevailing 

wage rates, overburdening SWA staff, 

while in the past, the loss of priority 

dates discouraged repeat submission of 

cases. The commenter suggested 

employers be required to wait a certain 

amount of time before being allowed to 

submit a new job description on behalf 

of the same alien worker. Two 

commenters asked whether the 

supplemental filing allowed under the 

proposed rule (see § 656.40(h)) meant 

the employer could submit a second 

survey rather than a supplement to the 

initial survey. 

We believe the concerns of SWA 

commenters are addressed by the 

proposed requirement that employers 

may only submit supplemental 

information to the SWA one time about 

the skill level of the job opportunity, the 

survey it provided for the SWA’s 

consideration, or some other legitimate 

basis for further review by the SWA. 

Another commenter suggested the 

proposed rule at § 656.40(h) should 

include a provision for handling 

changes in Standard Occupational 

Classification (SOC) code due to the 

inclusion of supplemental information 

by employers. The commenter also 

suggested the section include provisions 

for situations in which there are 

disputes over issues other than skill 

level or acceptability of surveys. 

In response to the question about the 

employer’s ability to submit 

supplemental information to a SWA, we 

note this provision was meant to 

address situations where the employer 

disagrees with the SWA about the skill 

level assigned to the job opportunity, or 

where there is a need to address issues 

concerning the rejection of an employerprovided survey or the improper 

application by the SWA of the 

appropriate skill level from such a 

survey. It was not intended to serve as 

a means for an employer to submit a 

completely different survey. The 

submission of a wholly different 

alternative wage survey by an employer 

will be considered a new request for a 

prevailing wage determination and a 

new review process will be initiated. 

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77371

Last, it should be noted if the 

employer submits its own published 

survey in response to a prevailing wage 

determination from the SWA that was 

derived from the OES survey, this 

submission would not be considered to 

be the single opportunity the employer 

has under § 656.40(h) to submit 

supplemental information regarding a 

prevailing wage determination. Rather, 

the submission of an alternative survey 

by the employer in this situation would 

be considered a new request for a 

prevailing wage determination and 

should be reviewed by the SWA under 

§ 656.40(g), as if the employer had 

submitted the alternative survey with its 

initial request. If the SWA then rejects 

the employer-provided survey as 

inadequate or unacceptable for any 

reason, the employer may then submit 

supplemental information on the survey 

under § 656.40(h). If, after a review of 

the employer’s supplemental 

information, the SWA determines the 

survey is still unacceptable, the 

employer would then have the 

opportunity to request a review of the 

SWA’s prevailing wage determination 

by the CO under § 656.41. 

12. Prevailing Wages for Certain 

Academic, Nonprofit, and Research 

Entities 

A number of commenters, largely 

university representatives, addressed 

prevailing wage issues pertinent to 

nonprofit institutions. Some 

commenters were concerned DOL had 

failed to meet its statutory obligation to 

calculate prevailing wages for the 

academic community. One commenter 

urged DOL to meet that obligation by 

accepting and using wage scales already 

in place, and suggested a number of 

sources, including the National 

Institutes of Health and similar 

Government agencies, the Journal 

Academe, and the Council on Teaching 

Hospitals. 

The American Competitiveness and 

Workforce Improvement Act of 1998 

(ACWIA), Pub. L.105–277, 112 Stat. 

2681–641, amended the INA (Section 

212(p)(1), 8 U.S.C. 1182(p)(1)) to require 

the computation of the prevailing wage 

for employees of institutions of higher 

education, nonprofit entities related to 

or affiliated with such institutions, 

nonprofit research organizations, and 

Governmental research organizations 

only take into account the wages paid 

by such institutions and organizations 

in the area of intended employment. 

With respect to commenters’

suggestions that DOL has yet to fully 

comply with the ACWIA mandate in 

determining prevailing wages for the 

affected institutions, we continue to 

believe it may not be feasible to identify 

the different kinds of entities that might 

comprise educational institutions’

related or affiliated nonprofit entities, or 

nonprofit research organizations. If 

those entities can not be identified, it 

may not be possible for DOL to properly 

define the universe that should be 

surveyed to determine the appropriate 

prevailing wages. It should be noted that 

despite these difficulties in identifying 

the appropriate entities to be surveyed, 

employers are always free to submit 

alternative sources of wage data that 

survey individuals employed by the 

affected entities.

In order to comply with these 

requirements in the absence of a 

solution to this issue, the OES data we 

currently make available is broken out 

into two data sets. In the absence of a 

better alternative, we will continue to 

use the prevailing wage data OES 

currently collects in surveying 

institutions of higher education to 

determine a prevailing wage for one 

universe consisting of institutions of 

higher education, affiliated or nonprofit 

research institutions, and nonprofit 

research organizations. 

We continue to discuss with BLS the 

possibility of obtaining data for 

‘‘Governmental research organizations,’’

because pay scales for Governmental 

research laboratories and other related 

activities are established by the Federal 

Government and do not necessarily 

correspond with the other three types of 

entities set forth under ACWIA. For this 

reason, we do not contemplate 

including Governmental research 

organizations in the same universe 

unless the technical problems in 

determining the prevailing wages for 

such entities prove to be 

insurmountable. Although BLS has data 

from the Office of Personnel 

Management on Federal wages, it must 

be determined whether we can extract 

from that data those wages paid in 

organizations in which the primary 

function is research. Until that analysis 

occurs and it is determined if that 

information can be used, the prevailing 

wage data obtained from surveys of 

institutions of higher education will 

continue to be used for these types of 

organizations as well. 

13. Role of the SWA in the Prevailing 

Wage Process 

For various reasons, some 

commenters recommended the 

elimination of SWAs from the PWD 

process. AILA asserted that prevailing 

wage determinations vary widely from 

SWA to SWA, and suggested regional 

determinations would produce greater 

reliability and uniformity for employers. 

AILA suggested DOL amend the 

proposed rule to allow employers to 

obtain prevailing wage data from 

published, acceptable Government 

sources, such as OES. The employer’s 

prevailing wage and wage source could 

then be reviewed at the CO level. The 

commenters stated this procedure 

would improve the PWD process by 

eliminating the expensive step of SWAs 

determining and assigning wage rates. 

Two commenters stated that by 

requiring a SWA-endorsed PWDR, DOL 

is missing an opportunity to reduce the 

resource burden on SWAs. The 

commenters emphasized that DOL is 

shifting to an attestation-based labor 

certification system, and suggested the 

prevailing wage requirements also shift 

to such a system. The commenters noted 

employers are not required to secure a 

PWD from a SWA in connection with 

H’1B nonimmigrant applications, and 

believed they should not be required to 

do so in the context of permanent labor 

certification either. 

For the reasons provided above in our 

discussion of employer-provided wage 

data, we can not agree with the 

suggestion that the SWA’s role in the 

prevailing wage process be eliminated. 

The results of our audit experience 

under the streamlined labor certification 

system and the program experience we 

will obtain in administering the 

prevailing wage function will be 

considered in considering whether the 

role of the SWA in determining 

prevailing wages should be modified or 

eliminated. 

14. Occupational Wage Library 

Several commenters discussed issues 

relating to electronic processing of 

PWD. A few commenters believed 

DOL’s Online Wage Library (OWL) 

could be a useful tool in streamlining 

the PWD process. The commenters all 

discussed modifying the proposed rule 

to take advantage of OWL. One of the 

commenters stated that, by using OWL, 

employers could bypass direct 

processing of PWDR’s by SWAs, saving 

both time and resources. The 

commenter suggested employers could 

submit computer-generated PWDR 

forms created by OWL along with the 

labor certification application. The 

computer-generated forms could 

include date stamping or other 

embedded codes to allow DOL to verify 

the date the form was generated. The 

commenter believed such automation of 

PWDR forms would lead to improved 

efficiency at the SWA level. 

We strongly encourage interested 

parties to make use of the OWL as a 

means of identifying prevailing wage 

rates for positions for which an 

77372 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

employer seeks to employ foreign 

workers. However, for the reasons 

provided above in the sections on 

employer provided wage surveys and 

the role of the SWA, we do not believe 

it would be appropriate to automate the 

prevailing wage determination process 

in its entirety at this time. 

15. Technical Correction

One commenter indicated there was a 

typographical error at § 656.40(b)(3). 

The commenter also stated that in 

§ 656.40(g)(2) there is potential 

confusion in referring to ‘‘other wage 

data.’’ As the term could be open to 

interpretation, the commenter suggested 

DOL delete the term ‘‘other wage data’’

throughout the section and substitute 

‘‘surveys.’’

We have corrected the error in 

§ 656.40(b)(3) in accordance with the 

commenter’s suggestion. With respect to 

the concern with the phrase ‘‘other wage 

data’’ in § 656.40(g)(2), we do not 

believe it necessary to modify the 

regulation. This language predates the 

NPRM and was taken directly from 

section J of GAL 2–98. The provision in 

the regulation is intended to highlight 

the fact that an alternative source of 

wage data need not be a formally 

conducted and published wage survey, 

but could also be an ad hoc set of wage 

data from a survey that has been 

conducted or funded by the employer, 

as long as each of the criteria from 

section J were met. 

16. Miscellaneous Matters 

AILA asserted the proposed 

regulations at §§ 655.731 and 656.40 

establish two different standards for 

determining prevailing wage rates for 

essentially the same occupations. AILA 

stated the involvement of two different 

agencies in the PWD process constitutes 

an unnecessary two-tier wage system, 

doubling processing times, 

opportunities for delay, and the 

likelihood of errors and inconsistencies. 

The Immigration Act of 1990 (IMMACT 

90), Public Law 101–649, 104 Stat. 4978, 

first established the attestation process 

for H–1B ‘‘specialty occupation’’

nonimmigrants, and included a 

prevailing wage requirement under that 

process. The Conference Report on 

IMMACT 90 did indeed suggest that 

‘‘the prevailing wage to which an 

employer must attest is expected to be 

interpreted by the Department of Labor 

in a like manner as regulations currently 

guiding section 212(a)(14)’’ [now at 

section 212(a)(5)(A)]. The regulations 

referred to are the provisions at § 656.40 

that govern the prevailing wage process 

under the permanent labor certification 

program. However, while the prevailing 

wage processes under the two programs 

are as similar as is functionally possible, 

they have different legislative and 

programmatic histories. For example, 

under the permanent program, the 

employer is required to obtain a 

prevailing wage determination from the 

SWA, whether through the use of a 

CBA, the OES survey, or the submission 

of alternative sources of data for SWA 

review. In contrast, under the H–1B 

program, SWA approval of any 

particular source of prevailing wage 

data is not required. As stated in the 

current regulations at § 655.731(a)(2) 

‘‘the employer is not required to use any 

specific methodology to determine the 

prevailing wage and may utilize a SESA, 

an independent authoritative source, or 

other legitimate sources of wage data.’’

While it is correct that under the current 

regulation, the involvement of both 

SWAs and ETA regional offices in the 

prevailing wage determination process 

constitutes a two-tiered process, with 

this final rule the process will be 

streamlined whereby appeals of SWA 

PWDs will be handled by COs located 

in ETA processing centers as discussed 

below. 

One commenter recommended DOL 

institute controls to ensure employers 

use the correct prevailing wages in job 

orders and advertisements during 

recruitment. The commenter also 

suggested on-site wage and hour audits 

be conducted to ensure employers are 

following through and paying 

employees prevailing wages. While this 

final rule does not require the employer 

to include the wage offer in 

advertisements placed as part of the 

required pre-filing recruitment, if the 

wage offer is included, it will be 

reviewed in the event of audit to ensure 

it meets or exceeds the prevailing wage 

for the job opportunity for which 

certification is sought. With respect to 

the recommendation that the Wage and 

Hour Division conduct on-site audits to 

ensure employer compliance, we have 

no statutory authority to require this 

activity. 

V. Certifying Officer Review of 

Prevailing Wage Determinations 

The NPRM proposed establishing a 

Prevailing Wage Panel (PWP) that does 

not exist under the current regulations. 

The national PWP would have 

adjudicated complaints arising from 

PWD made by SWAs. 

Commenters generally supported the 

creation of the PWP. For example, one 

prevailing wage specialist considered 

the PWP to be an excellent idea, stating 

the PWP would improve consistency of 

wage determination review and 

simultaneously would support the 

efforts of SWAs. Likewise, AILA stated 

a single adjudicative body would 

improve resolution of prevailing wage 

issues. The PWP would help resolve 

differences in alternative sources of 

prevailing wage data, for instance, by 

determining the acceptability of 

particular surveys and applying the OES 

survey to wage determinations. While 

expressing support for the proposed 

PWP, many commenters also suggested 

modifications to the proposed rule. 

However, because the processing of 

applications for permanent employment 

certification will occur in one of two 

processing centers, we have concluded 

the establishment of a PWP is not 

necessary. Each center will be managed 

by a center director who will report to 

the Chief, Division of Foreign Labor 

Certification. Case determinations will 

be made by COs assigned to the 

processing centers. The COs will also 

make determinations with respect to 

appeals of the prevailing wage 

determinations issued by the SWAs. It 

will be considerably easier for the 

national office to review and provide 

oversight of the determinations issued 

by COs located in ETA processing 

centers. This change in reporting is 

different than under the former system 

when the national office did not have 

line authority over case processing and 

decisions made by COs with respect to 

PWDs. Accordingly, uniformity in 

decision-making with respect to appeals 

will be enhanced and § 656.41 provides 

in this final rule, appeals of PWDs 

issued by SWAs will be decided by a 

CO rather than by a PWP. 

We can not accept the 

recommendations of several 

commenters to impose specific time 

frames on SWAs and the PWP (now the 

COs in this final rule) in taking actions 

under the prevailing wage 

determination and review process. 

Because it is not possible to anticipate 

the number of challenges that will be 

directed to the COs for review, and 

because there is no set level of 

resources, we do not believe it would be 

appropriate to constrain the COs in such 

fashion at the infancy of the new 

process. We do, however, anticipate that 

SWAs and the COs will operate in as 

expeditious a manner as is possible. 

Further, in response to comments that 

the 21 day period during which a 

request for review must be initiated by 

an employer is unreasonable and 

unduly burdensome, we have amended 

the proposed § 656.41(a) to state an 

employer requesting a review of a SWA 

prevailing wage determination must 

make such a request within 30 days of 

the date of the determination.

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77373

We have also amended § 656.41(a) to 

correct an inconsistency as to when the 

period during which the employer may 

request review of a prevailing wage 

determination commences. The first 

sentence stated the employer must make 

a request for such a review ‘‘within 21 

days of receiving a determination from 

the SWA,’’ while the next sentence 

stated the request for review must be 

sent to the SWA that issued the 

prevailing wage determination ‘‘within 

21 days of the date of the PWD.’’ To 

remove this inconsistency and to 

provide greater clarity as to the date 

upon which the request for review 

period commences, the final rule has 

been modified to state in both places it 

appears that the employer must make a 

request for review within 30 days from 

the date the prevailing wage 

determination was first issued by the 

SWA. Similarly, we have modified this 

final rule to provide that a request for 

review of the determination by BALCA 

must be made within 30 days of the date 

of the decision of the CO. 

Last, it should be noted the appeal 

stage of the process is not intended to 

serve as an avenue for the employer to 

submit new materials relating to a 

prevailing wage determination. The 

employer’s submittal of an employerprovided alternative survey subsequent 

to a prevailing wage determination 

based upon the OES survey, and the 

single opportunity to submit 

supplemental information to the SWA, 

represent the employer’s only 

opportunities beyond the initial filing to 

include materials in the record that will 

be before the CO in the event of an 

employer request for review under 

§ 656.41. 

Executive Order 12866

Several commenters suggested we had 

not adequately assessed the potentially 

increased costs the NPRM could impose 

on employers. Some maintained these 

costs singularly or collectively would 

have an economic impact of $100 

million or more. These commenters 

asserted we had not adequately 

addressed a number of issues in 

certifying that this rule was not an 

economically significant regulatory 

action within the meaning of Executive 

Order 12866. These issues are discussed 

below: 

1. Impact of Fraud and Abuse 

FAIR maintained we are required to 

conduct a full cost/benefit analysis of 

the proposed regulatory changes to 

determine if the regulatory scheme can 

be tailored to remove or significantly 

reduce the impermissible burden on 

society that fraud and abuse in 

employment-based immigration 

represents. FAIR, however, did not 

allege that any fraud or abuse that may 

exist in the permanent labor 

certification program would be greater 

under the new system than it is under 

the current system. Moreover, the 

information FAIR provided about the 

impact of fraud and abuse was not 

supported by any factual data, was 

speculative in nature or couched in 

hypothetical terms. For example, FAIR 

stated it ‘‘had received indications of a 

40 percent fraud and misrepresentation 

rate of permanent labor certification 

applications filed in at least one 

jurisdiction.’’ FAIR did not provide any 

factual information to support a 40 

percent fraud rate in any jurisdiction. 

We do not believe FAIR’s unsupported 

allegations provide a sufficient basis to 

conclude this final rule is likely to have 

an annual effect on the economy of $100 

million or more. 

2. Cost of Advertisements 

Several commenters maintained the 

$500.00 cost per advertisement over all 

types of publications and geographic 

locations specified in the Paperwork 

Reduction Act statement in the NPRM 

was too low. For the purpose of 

assessing the economic impact of 

advertising costs, however, it is not the 

absolute level of such costs that is 

important, but the comparison of the 

costs under the current rule versus this 

final rule. Our analysis indicates that 

advertising costs will be lower under 

this final rule than under the current 

regulations. As indicated in the 

preamble on the contents of advertising, 

employers have the option of writing a 

considerably less detailed advertisement 

under this final rule than they do under 

the current system. 

A review of advertising costs was 

conducted by contacting major 

newspapers in various U.S. cities and 

inquiring about advertising rates for 

Sunday and midweek advertisements. 

The basis for assessing the costs of the 

advertisements was two 10-line 

advertisements. Ten-line advertisements 

would be permissible under this final 

rule. Estimated costs for placing two 10-

line Sunday advertisements ranged from 

$400 to $1,100, whereas a 3-day 

advertisement would cost between $330 

and $1,100. It is highly unlikely the cost 

of Sunday advertisement will be as high 

as claimed by commenters. Further, we 

conclude on the basis of our program 

experience the 3-day advertisements 

typically placed by employers under the 

current regulations are considerably 

longer than 10 lines. Consequently, the 

two Sunday advertisements required 

under this final rule will cost less than 

the 3-day advertisement under the 

current regulations. 

3. Recruitment Reports 

AILA maintained we did not address 

in the NPRM the added expense of a 

recruitment report that would require 

employers to track each and every 

applicant for a position, so the process 

by which an applicant was deemed 

qualified or unqualified for the position 

can be reported on an applicant by 

applicant basis. AILA indicated this 

would be particularly troublesome for 

larger employers. 

Requiring employers to track each and 

every applicant for a position is not a 

new requirement. This is what the 

current basic process requires at 

§ 656.21(j). The Department has 

required this since 1981. Admittedly, 

we have for the last few years permitted 

a simplified recruitment report, which 

did not require employers to track every 

applicant for a job opportunity, which 

was the subject of an RIR application. 

The RIR procedure, however, only 

applies to those occupations for which 

there is little or no availability. This 

procedure is the exception rather than 

the rule. 

However, in response to comments 

raised with respect to this issue, we 

have revised our recruitment report 

requirements by removing the 

requirement that each individual U.S. 

worker who applied for the job 

opportunity be identified on the report. 

However, the employer retains the 

responsibility for proving that U.S. 

workers are not available for the job 

opportunity and any U.S. worker 

rejections were for lawful reasons. 

It should be noted, however, that we 

did address the cost of preparing the 

required recruitment report in the 

Information Collection Request (ICR) 

that was submitted to the Office of 

Management and Budget in connection 

with publication of the NPRM on May 

6, 2002. In the ICR we estimated on 

average it would take 1 hour for an 

employer to prepare a recruitment 

report for each application it files. This 

estimate included employers preparing 

recruitment reports under the regular 

basic process and the RIR process.

The NPRM at 67 FR 30483 indicated 

how to request copies of the ICR and 

where to submit comments on the ICR. 

We did not receive any comments on 

the average of one burden hour we 

allocated to the preparation of the 

recruitment report. 

4. Additional Recruitment Steps 

AILA maintained DOL failed to 

address the cost of required additional 

recruitment steps. According to AILA, 

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‘‘(p)articipation in job fairs, use of 

placement agencies, and internet ads 

can be extremely costly recruitment 

tools, thus imposing significant 

additional expenses upon employers 

who wish to participate in the labor 

certification process, particularly small 

employers.’’

Under the procedures in this final 

rule, employers may select from a more 

extensive list of additional recruitment 

steps than were listed in the proposed 

rule. Two of the additional recruitment 

steps—employer’s website and campus 

placement offices—would require no 

more than nominal expenditures on the 

part of the employer-applicant. While 

some of the other alternative 

recruitment steps can be expensive, they 

are not always expensive. Employers 

can, for example, recruit using a low 

cost job fair instead of an expensive job 

fair. Further, we believe the additional 

recruitment steps represent real world 

alternatives. The overwhelming majority 

of employers seriously recruiting 

workers for U.S. jobs would routinely 

use one or more of the listed additional 

recruitment steps. Additionally, it 

should be noted the alternative 

recruitment steps only require 

employers to advertise for the 

occupation involved in the application 

rather than the job opportunity involved 

in the application as is required for the 

newspaper advertisement. Allowing 

employers to recruit for the occupation 

involved in the application should also 

work to minimize employers costs to 

conduct special recruitment efforts 

solely to satisfy the alternative 

recruitment steps. In sum, we do not 

believe the cost of additional 

recruitment steps to the employer will 

be significant. 

5. RIR Recruitment Costs 

Some commenters expressed concerns 

about differences in the cost to prepare 

and submit an RIR application as 

compared to the new system would be 

due to differences in advertising 

requirements. RIR recruitment efforts 

and concomitant costs vary with 

economic conditions. In light of the 

current labor market and the 

substantially increased availability of 

U.S. workers, COs scrutinize 

applications and the recruitment efforts 

supporting them more closely than they 

did during more favorable economic 

conditions characterized by lower 

unemployment rates. In the current 

economic environment, employers are 

supporting their RIR applications with 

more extensive recruitment 

documentation than they were when 

labor markets were considerably tighter. 

Our program experience leads us to 

believe the pre-filing recruitment efforts 

currently being conducted by employers 

under the RIR process compare 

favorably with the pre-filing recruitment 

required under this final rule. 

Regardless of whether economic 

conditions are characterized by tight or 

loose labor markets, COs require 

employers to show a pattern of 

recruitment which requires the 

employer, as a practical matter, to 

conduct one or more of the alternative 

steps required under this final rule. 

Many employers, regardless of the state 

of the labor market, place two print 

advertisements to support their RIR 

applications. In our judgment, the time 

and resources employers are expending 

to conduct recruitment to support their 

RIR applications is about the same as 

the time and resources they would have 

to spend on such activities to obtain the 

documentation necessary to support 

their application under the new 

streamlined program. 

6. Business Necessity, Alternative Job 

Requirements, Combination 

Occupations, and Experience Gained 

With the Employer 

AILA maintained we failed to assess 

the economic consequences of the 

proposed elimination of the use of the 

business necessity standard, alternative 

job requirements, combination 

occupations and experience gained with 

the employer. However, as discussed 

above, DOL has decided to retain the 

business necessity test and allow the 

appropriate use of these standards and 

criteria by employers applying for 

permanent alien employment 

certifications. Therefore, there is no 

economic impact from the continued 

use of business necessity, alternative job 

requirements, combination occupations 

and experience gained with the 

employer that needs to be discussed in 

this final rule. 

7. Elimination of the Five (5) Percent 

Variance From the Prevailing Wage 

AILA maintained that this final rule 

must explore and discuss the economic 

effect of the proposed elimination of the 

provision in the current rule under 

which the wage offered in a labor 

certification application is considered as 

meeting the prevailing wage standard if 

it is within 5 percent of the average rate 

of wages. AILA stated the 5 percent 

variance ‘‘was significant, because it 

helped to compensate for the fact that 

DOL’s prevailing wage data is outdated, 

and artificial by comparison [sic] by 

elements such as bonuses and 

commissions (elements under the DOL 

rule, may not be included in the 

employer’s offered wage).’’

The policy of not including bonuses 

in calculating the prevailing wage is a 

longstanding policy and was not a factor 

in the decision to permit employers to 

set forth a wage on the labor 

certification that was within 95 percent 

of the prevailing wage. It should also be 

noted employers were always allowed 

to base the offered wage on 

commissions, bonuses or other 

incentives as long as the employer 

guaranteed a wage paid on a weekly, 

biweekly, or monthly basis. (See 20 CFR 

656.20(c)(3) of the current regulation 

and page 34 of Technical Assistance 

Guide No. 656—Labor Certifications.)

The reason for allowing employers to 

offer a wage that was within 95 percent 

of the prevailing wage was because we 

could not always be confident of the 

statistical precision of the ad hoc 

telephone surveys of employers that 

were often conducted by the SWAs to 

determine the prevailing wage. Since 

the statistical precision of these ad hoc 

surveys varied greatly, we believed it 

necessary to allow some variance in the 

rate offered by the employer. In 

reviewing this policy we have 

determined the basic premise was in 

one respect flawed as the ad hoc surveys 

conducted by SWAs were as likely to be 

inaccurate on the low side as on the 

high side. 

As indicated in the preamble, since 

the introduction of the OES program in 

1998, we have determined it is no 

longer necessary to provide the 5 

percent variance. The wage component 

of the OES survey is conducted by BLS 

and with the exception of the Decennial 

Census is the most comprehensive 

survey conducted by an agency of the 

Federal Government. The OES program 

surveys approximately 400,000 

establishments per year, taking 3 years 

to fully collect the sample of 1.2 million 

establishments. This sample covers over 

70 percent of the employment in the 

U.S. See 67 FR at 30479. The 

comprehensive nature of the OES 

program and resulting degree of 

statistical precision make it unnecessary 

to provide a 5 percent variance which 

was, as indicated above, based on a 

flawed premise. 

Further, we have determined that, in 

view of the greater accuracy of PWD 

under the OES program, the Secretary 

would not be fulfilling her statutory 

responsibility to certify that the 

employment of the beneficiary of a labor 

certification application will not 

adversely affect the wages and working 

conditions of U.S. workers similarly 

employed if she continued to certify 

applications whereby employers were 

allowed to pay 95 percent of the 

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77375

prevailing wage as determined by the 

SWA. 

8. Attorney Fees 

One commenter stated the proposed 

rule will add up to 10 hours of 

additional attorney time and will cost 

from $800.00 to $2,500 per case. Legal 

fees are not appropriate to include in 

any estimate of financial impact. 

Attorney representation is not necessary 

to file an Application for Permanent 

Employment Certification.

9. Cost of In-House Compliance 

One commenter stated the cost of 

$25.00 per hour for the 557,429 burden 

hours provided in item 12 of the 

supporting statement to the Information 

Collection Request submitted to OMB 

significantly understates the true costs 

of such employees by at least 100 

percent. We believe the $25.00 an hour 

used in the ICR to compute the cost for 

burden associated with this rulemaking 

is fair and reasonable. According to the 

2001 National Occupational 

Employment and Wage estimates 

published by BLS, the national average 

wage for employment recruitment and 

placement specialists amounted to 

$21.31. In the main, we believe 

employment recruitment and placement 

specialists fairly represent the skills and 

work experience required to comply 

with the paperwork requirements of this 

final rule. 

Based on the foregoing, we certify, as 

in the NPRM, that this final rule is not 

an ‘‘economically significant regulatory 

action’’ within the meaning of Executive 

Order 12866. The direct incremental 

costs employers will incur because of 

this rule, above business practices 

required by the current rule of 

employers that are applying for 

permanent alien workers, will not 

amount to $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. DOL believes any 

potential increase in recruitment and 

recordkeeping costs associated with the 

proposed rule will be more than offset 

by the combination of eliminating the 

role of the SWAs in the recruitment 

process and, consequently, eliminating 

the time employers currently spend in 

working with SWAs to meet regulatory 

requirements. Further, the expected 

large reduction in the time to process 

applications will lead to a reduction in 

the resources employers spend on 

processing applications and will 

eliminate DOL’s need to periodically 

institute special, resource intensive 

efforts to reduce backlogs, which have 

been a recurring problem under the 

current process. Any cost savings 

realized, however, will not be greater 

than $100 million. 

While it is not economically 

significant, the Office of Management 

and Budget (OMB) reviewed the 

proposed rule because of the novel legal 

and policy issues raised by this 

rulemaking.

Regulatory Flexibility Act 

We have notified the Chief Counsel 

for Advocacy, Small Business 

Administration, and made the 

certification under the Regulatory 

Flexibility Act at 5 U.S.C. 605(b), that 

the rule will not have a significant 

impact on a substantial number of small 

entities. The final rule will affect only 

those employers seeking immigrant 

workers for permanent employment in 

the United States. Since any employer 

can file a permanent application for 

permanent employment, the Department 

considers the appropriate universe to 

determine the impact of the final rule on 

a substantial number of small entities in 

the United States is the universe of 

small businesses in the United States. 

The Department estimates in the 

upcoming year 60,000 employers will 

file approximately 100,000 applications 

for permanent employment certification. 

Some large employers file several 

hundred applications in a year. 

Therefore, the number of small entities 

that file applications is significantly less 

than the 60,000 employers that will file 

applications in the coming year. 

According to the Small Business 

Administration’s publication The 

Regulatory Flexibility Act; An 

Implementation Guide for Federal 

Agencies, there were 22,400,000 small 

businesses in the United States in 2001. 

Thus the percentage of small businesses 

that file applications for permanent 

alien employment certification is 0.27 

percent (60,000 22,400,000 = 0.27%). 

The Department of Labor asserts a small 

business pool of 0.27% does not 

represent a substantial proportion of 

small entities. 

When the proposed rule was 

published, the Department 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 rule would not have a significant 

impact on a substantial number of small 

entities. The Chief Counsel did not 

submit a comment. 

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 (SBREFA). The standards for 

determining whether a rule is a major 

rule as defined by section 804 of the 

Small Business Regulatory Enforcement 

Act are similar to those used to 

determine whether a rule is an 

‘‘economically significant regulatory 

action’’ within the meaning of Executive 

Order 12866. Because we certified this 

final rule is not an economically 

significant rule under Executive Order 

12866, we certify that the final rule is 

not a major rule under SBREFA. 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 foreignbased companies in domestic and 

export markets. 

Executive Order 13132 

We received one comment 

maintaining that a summary impact 

statement should be required prior to 

any passage of these rules. The 

commenter maintained the impact of an 

increased number of aliens entering the 

various states will be substantial. The 

commenter went on to state: ‘‘If, for 

example, in California there are 10,000 

aliens and their spouses and minor 

children entering the state each year as 

a result of fraudulent and 

misrepresented labor certifications, U.S. 

workers will have fewer job 

opportunities and community resources 

will be additionally taxed for the 

provision of various services at the 

expense of lawful state residents.’’ The 

permanent alien labor certification 

regulations do not affect the numbers of 

immigrants entering the United States 

each year under various visa categories, 

including work-based visas. Those 

numbers are fixed by statute. Further, 

the Department sees no basis for the 

speculation the rule will result in an 

increase in fraudulently obtained labor 

certifications. For those reasons, we 

have determined the rule will not have 

a substantial and direct impact on the 

77376 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

states, on the relationship between the 

Federal Government and the states, or 

on the distribution of power and 

responsibilities among the various 

levels of government. 

Assessment of Federal Regulations and 

Policies on Families 

The proposed regulation does not 

affect family well-being. 

Paperwork Reduction Act 

Summary: This final rule contains 

revised paperwork requirements that are 

necessary to the implementation of the 

revised labor certification program. The 

revised paperwork requirements are 

discussed in detail in section V of the 

preamble that addresses the comments 

received on the proposed rule and in the 

section that discusses the comments 

relevant to the Department’s 

certification under Executive Order 

12866 that this final rule is not an 

‘‘economically significant regulatory 

action.’’

Respondents and frequency of 

response: Employers submit an 

Application for Permanent Employment 

Certification when they wish to employ 

an immigrant alien worker. ETA 

estimates, based on its operating 

experience that in the upcoming year 

employers will file approximately 

100,000 applications for alien 

employment certification (including an 

estimated 5,300 applications filed with 

the DHS on behalf of aliens who qualify 

for Schedule A or who are immigrating 

to work as sheepherders), for a total 

burden of 125,000 hours (100,000 

applications for permanent employment 

certification × 1.25 hours = 125,000 

hours). 

The Department estimates the total 

annual burden for all information 

collections in the final rule amounts to 

255,980 hours. Employers filing 

applications for permanent employment 

certifications come from a wide variety 

of industries. Personnel costs for 

employers and/or their employees who 

perform the reporting and 

recordkeeping functions required by 

this regulation may range from several 

hundred dollars to several thousand 

dollars where the corporate executive 

officer of a large company performs 

some or all of these functions 

themselves. Absent specific wage data 

regarding such employers and 

employees, respondent costs were 

estimated in the proposed rule at an 

average of $25.00 an hour. Based on the 

forgoing, the total annual respondent 

costs for all information collections are 

estimated at $6,399,500. 

The Department estimates that 5,000 

employers will be required to conduct 

supervised recruitment. The Department 

estimates the cost of an advertisement 

over all types of publications and 

geographic locations will average 

$500.00 for a total annual burden of 

approximately $2,500,000. 

The paperwork requirements 

discussed in the preamble to this final 

rule will not become effective until 

OMB has reviewed and approved these 

requirements and assigned an OMB 

approval number. A copy of the current 

draft of ETA Form 9089 and instructions 

follow this final rule. 

Catalogue of Federal Domestic 

Assistance Number 

This program is listed in the Catalog 

of Federal Domestic Assistance at 

Number 17.203, ‘‘Certification for 

Immigrant Workers.’’

List of Subjects in 20 CFR Parts 655 and 

656 

Administrative practice and 

procedure, Agriculture, Aliens, 

Crewmembers, Employment, 

Employment and Training, 

Enforcement, Forest and forest products, 

Fraud, Guam, Health professions, 

Immigration, Labor, Longshore and 

harbor work, Migrant Labor, Passports 

and visas, Penalties, Reporting and 

Recordkeeping requirements, Students, 

Unemployment, Wages, Working 

Conditions.

Appendix A to the Preamble—

Education and Training Categories by 

O*Net–SOC Occupation

Note: Appendix A will not be codified in 

the Code of Federal Regulations.

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Final Rule 

Accordingly, for the reasons stated in 

the Preamble, Parts 655 and 656 of 

Chapter V of Title 20 of the Code of 

Federal Regulations are amended as 

follows:

PART 655—TEMPORARY 

EMPLOYMENT OF ALIENS IN THE 

UNITED STATES

■ 1. The authority citation for part 655 

continues to read as follows:

Authority: Section 655.0 issued under 8 

U.S.C. 1101(a)(15)(H)(i) and (ii), 1182(m), (n), 

and (t), 1184, 1188, and 1288(c) and (d); 29 

U.S.C. 49 et seq.; sec. 3(c)(1), Pub. L. 101–

238, 103 Stat. 2099, 2102 (8 U.S.C. 1182 

note); sec. 221(a), Pub. L. 101–649, 104 Stat. 

4978, 5027 (8 U.S.C. 1184 note); Title IV, 

Pub. L. 105–277,112 Stat. 2681; and 8 CFR 

213.2(h)(4)(i).

Section 655.00 issued under 8 U.S.C. 

1101(a)(15)(H)(ii), 1184, and 1188; 29 U.S.C. 

49 et seq.; and 8 CFR 214.2(h)(4)(i). 

Subparts A and C issued under 8 U.S.C. 

1101(a)(15)(H)(ii)(b) and 1184; 29 U.S.C. 49 et 

seq.; and 8 CFR 214.2(h)(4)(i). 

Subpart B issued under 8 U.S.C. 

1101(a)(15)(H)(ii)(a), 1184, and 1188; and 29 

U.S.C. 49 et seq.

Subparts D and E issued under 8 U.S.C. 

1101(a)(15)(H)(i)(a), 1182(m), and 1184; 29 

U.S.C. 49 et seq.; and sec. 3(c)(1), Pub. L. 

101–238, 103 Stat. 2099, 2103 (8 U.S.C. 1182 

note). 

Subparts F and G issued under 8 U.S.C. 

1184 and 1288(c); and 29 U.S.C. 49 et seq.

Subparts H and I issued under 8 U.S.C. 

1101(a)(15)(H)(i)(b) and (b1), 1182(n), 1182(t), 

and 1184; 29 U.S.C. 49 et seq.; sec 303(a)(8), 

Pub. L. 102–232, 105 Stat. 1733, 1748 (8 

U.S.C. 1182 note); and Title IV, Pub. L. 105–

277, 112 Stat. 2681. 

Subparts J and K issued under 29 U.S.C. 49 

et seq.; and sec 221(a), Pub. L 101–649, 104 

Stat. 4978, 5027 (8 U.S.C. 1184 note). 

Subparts L and M issued under 8 U.S.C. 

1101(a)(15)(H)(1)(c), 1182(m), and 1184, 29 

U.S.C. 49 et seq.

Subpart H—Labor Condition 

Applications and Requirements for 

Employers Using Nonimmigrants on 

H–1B Visas in Specialty Occupations 

and as Fashion Models, and Labor 

Attestation Requirements for 

Employers Using Nonimmigrants on 

H–1B1 Visas in Specialty Occupations

■ 2. Section 655.731 is amended by:

■ (a) Revising paragraph (a)(2);

■ (b) Redesignating paragraphs 

(b)(3)(iii)(B)(2) and (3) as (b)(3)(iii)(B)(3) 

and (4), respectively;

■ (c) Adding new paragraph 

(b)(3)(iii)(B)(2);

■ (d) Redesignating paragraphs 

(b)(3)(iii)(C)(2) and (3) as paragraphs 

(b)(3)(iii)(C)(3) and (4), respectively;

■ (e) Adding new paragraph 

(b)(3)(iii)(C)(2);

■ (f) Revising paragraph (d)(1);

■ (g) Revising paragraph (d)(2) 

introductory text;

■ (h) Revising paragraph (d)(2)(i); and

■ (i) Removing paragraph (d)(4).

§ 655.731 What is the first LCA 

requirement regarding wages?

* * * * *

(a) * * * 

(1) * * * 

(2) The prevailing wage for the 

occupational classification in the area of 

intended employment must be 

determined as of the time of filing the 

application. The employer shall base the 

prevailing wage on the best information 

available as of the time of filing the 

application. Except as provided in this 

section, the employer is not required to 

use any specific methodology to 

determine the prevailing wage and may 

utilize a State Employment Security 

Agency (SESA) (now known as State 

Workforce Agency or SWA), an 

independent authoritative source, or 

other legitimate sources of wage data. 

One of the following sources shall be 

used to establish the prevailing wage: 

(i) A collective bargaining agreement 

which was negotiated at arms-length 

between a union and the employer 

which contains a wage rate applicable to 

the occupation; 

(ii) If the job opportunity is in an 

occupation which is not covered by 


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paragraph (a)(2)(i) of this section, the 

prevailing wage shall be the arithmetic 

mean of the wages of workers similarly 

employed, except that the prevailing 

wage shall be the median when 

provided by paragraphs (a)(2)(ii)(A), 

(b)(3)(iii)(B)(2), and (b)(3)(iii)(C)(2) of 

this section. The prevailing wage rate 

shall be based on the best information 

available. The Department believes the 

following prevailing wage sources are, 

in order of priority, the most accurate 

and reliable: 

(A) SESA (now known as State 

Workforce Agency or SWA) 

determination. Upon receipt of a written 

request for a prevailing wage 

determination, the SESA will determine 

whether the occupation is covered by a 

collective bargaining agreement which 

was negotiated at arms length, and, if 

not, determine the arithmetic mean of 

wages of workers similarly employed in 

the area of intended employment. The 

wage component of the Bureau of Labor 

Statistics Occupational Employment 

Statistics survey shall be used to 

determine the arithmetic mean, unless 

the employer provides an acceptable 

survey. If an acceptable employerprovided wage survey provides a 

median and does not provide an 

arithmetic mean, the median shall be 

the prevailing wage applicable to the 

employer’s job opportunity. In making a 

prevailing wage determination, the 

SESA will follow § 656.40 of this 

chapter and other administrative 

guidelines or regulations issued by ETA. 

The SESA shall specify the validity 

period of the prevailing wage 

determination which in no event shall 

be for less than 90 days or more than 1 

year from the date of the determination. 

(1) An employer who chooses to 

utilize a SESA prevailing wage 

determination shall file the labor 

condition application within the 

validity period of the prevailing wage as 

specified in the state’s prevailing wage 

determination. Any employer desiring 

review of a SESA prevailing wage 

determination, including judicial 

review, shall follow the appeal 

procedures at § 656.41 of this chapter. 

Employers which challenge a SESA 

prevailing wage determination under 

§ 656.41 must obtain a ruling prior to 

filing an LCA. In any challenge, the 

Department and the SESA shall not 

divulge any employer wage data which 

were collected under the promise of 

confidentiality. Once an employer 

obtains a prevailing wage determination 

from the SESA and files an LCA 

supported by that prevailing wage 

determination, the employer is deemed 

to have accepted the prevailing wage 

determination (as to the amount of the 

wage) and thereafter may not contest the 

legitimacy of the prevailing wage 

determination by filing an appeal with 

the CO (see § 656.41 of this chapter) or 

in an investigation or enforcement 

action. 

(2) If the employer is unable to wait 

for the SESA to produce the requested 

prevailing wage for the occupation in 

question, or for the CO and/or the Board 

of Alien Labor Certification Appeals to 

issue a decision, the employer may rely 

on other legitimate sources of available 

wage information as set forth in 

paragraphs (a)(2)(ii)(B) and (C) of this 

section. If the employer later discovers, 

upon receipt of the prevailing wage 

determination from the SESA, that the 

information relied upon produced a 

wage below the prevailing wage for the 

occupation in the area of intended 

employment and the employer was 

paying below the SESA-determined 

wage, no wage violation will be found 

if the employer retroactively 

compensates the H–1B nonimmigrant(s) 

for the difference between wage paid 

and the prevailing wage, within 30 days 

of the employer’s receipt of the 

prevailing wage determination. 

(3) In all situations where the 

employer obtains the prevailing wage 

determination from the SESA, the 

Department will accept that prevailing 

wage determination as correct (as to the 

amount of the wage) and will not 

question its validity where the employer 

has maintained a copy of the SESA 

prevailing wage determination. A 

complaint alleging inaccuracy of a SESA 

prevailing wage determination, in such 

cases, will not be investigated. 

(B) An independent authoritative 

source. The employer may use an 

independent authoritative wage source 

in lieu of a SESA prevailing wage 

determination. The independent 

authoritative source survey must meet 

all the criteria set forth in paragraph 

(b)(3)(iii)(B) of this section. 

(C) Another legitimate source of wage 

information. The employer may rely on 

other legitimate sources of wage data to 

obtain the prevailing wage. The other 

legitimate source survey must meet all 

the criteria set forth in paragraph 

(b)(3)(iii)(C) of this section. The 

employer will be required to 

demonstrate the legitimacy of the wage 

in the event of an investigation. 

(iii) For purposes of this section, 

‘‘similarly employed’’ means ‘‘having 

substantially comparable jobs in the 

occupational classification in the area of 

intended employment,’’ except that if a 

representative sample of workers in the 

occupational category can not be 

obtained in the area of intended 

employment, ‘‘similarly employed’’

means: 

(A) Having jobs requiring a 

substantially similar level of skills 

within the area of intended 

employment; or 

(B) If there are no substantially 

comparable jobs in the area of intended 

employment, having substantially 

comparable jobs with employers outside 

of the area of intended employment.

(iv) A prevailing wage determination 

for LCA purposes made pursuant to this 

section shall not permit an employer to 

pay a wage lower than required under 

any other applicable Federal, state or 

local law. 

(v) Where a range of wages is paid by 

the employer to individuals in an 

occupational classification or among 

individuals with similar experience and 

qualifications for the specific 

employment in question, a range is 

considered to meet the prevailing wage 

requirement so long as the bottom of the 

wage range is at least the prevailing 

wage rate. 

(vi) The employer shall enter the 

prevailing wage on the LCA in the form 

in which the employer will pay the 

wage (e.g., an annual salary or an hourly 

rate), except that in all cases the 

prevailing wage must be expressed as an 

hourly wage if the H–1B nonimmigrant 

will be employed part-time. Where an 

employer obtains a prevailing wage 

determination (from any of the sources 

identified in paragraphs (a)(2)(i) and (ii) 

of this section) that is expressed as an 

hourly rate, the employer may convert 

this determination to a yearly salary by 

multiplying the hourly rate by 2080. 

Conversely, where an employer obtains 

a prevailing wage (from any of these 

sources) that is expressed as a yearly 

salary, the employer may convert this 

determination to an hourly rate by 

dividing the salary by 2080. 

(vii) In computing the prevailing wage 

for a job opportunity in an occupational 

classification in an area of intended 

employment in the case of an employee 

of an institution of higher education or 

an affiliated or related nonprofit entity, 

a nonprofit research organization, or a 

Governmental research organization as 

these terms are defined in 20 CFR 

656.40(e), the prevailing wage level 

shall only take into account employees 

at such institutions and organizations in 

the area of intended employment. 

(viii) An employer may file more than 

one LCA for the same occupational 

classification in the same area of 

employment and, in such 

circumstances, the employer could have 

H–1B employees in the same 

occupational classification in the same 

area of employment, brought into the 

77386 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

U.S. (or accorded H–1B status) based on 

petitions approved pursuant to different 

LCAs (filed at different times) with 

different prevailing wage 

determinations. Employers are advised 

that the prevailing wage rate as to any 

particular H–1B nonimmigrant is 

prescribed by the LCA which supports 

that nonimmigrant’s H–1B petition. The 

employer is required to obtain the 

prevailing wage at the time that the LCA 

is filed (see paragraph (a)(2) of this 

section). The LCA is valid for the period 

certified by ETA, and the employer 

must satisfy all the LCA’s requirements 

(including the required wage which 

encompasses both prevailing and actual 

wage rates) for as long as any H–1B 

nonimmigrants are employed pursuant 

to that LCA (§ 655.750). Where new 

nonimmigrants are employed pursuant 

to a new LCA, that new LCA prescribes 

the employer’s obligations as to those 

new nonimmigrants. The prevailing 

wage determination on the later/

subsequent LCA does not ‘‘relate back’’

to operate as an ‘‘update’’ of the 

prevailing wage for the previously-filed 

LCA for the same occupational 

classification in the same area of 

employment. However, employers are 

cautioned that the actual wage 

component to the required wage may, as 

a practical matter, eliminate any wagepayment differentiation among H–1B 

employees based on different prevailing 

wage rates stated in applicable LCAs. 

Every H–1B nonimmigrant is to be paid 

in accordance with the employer’s 

actual wage system, and thus is to 

receive any pay increases which that 

system provides.

* * * * *

(b) * * * 

(3) * * * 

(iii) * * * 

(B) * * * 

(2) Reflect the median wage of 

workers similarly employed in the area 

of intended employment if the survey 

provides such a median and does not 

provide a weighted average wage of 

workers similarly employed in the area 

of intended employment;

* * * * *

(C) * * * 

(2) Reflect the median wage of 

workers similarly employed in the area 

of intended employment if the survey 

provides such a median and does not 

provide a weighted average wage of 

workers similarly employed in the area 

of intended employment;

* * * * *

(d) (1) In the event that a complaint 

is filed pursuant to subpart I of this part, 

alleging a failure to meet the ‘‘prevailing 

wage’’ condition or a material 

misrepresentation by the employer 

regarding the payment of the required 

wage, or pursuant to such other basis for 

investigation as the Administrator may 

find, the Administrator shall determine 

whether the employer has the 

documentation required in paragraph 

(b)(3)of this section, and whether the 

documentation supports the employer’s 

wage attestation. Where the 

documentation is either nonexistent or 

is insufficient to determine the 

prevailing wage (e.g., does not meet the 

criteria specified in this section, in 

which case the Administrator may find 

a violation of paragraph (b)(1), (2), or 

(3), of this section); or where, based on 

significant evidence regarding wages 

paid for the occupation in the area of 

intended employment, the 

Administrator has reason to believe that 

the prevailing wage finding obtained 

from an independent authoritative 

source or another legitimate source 

varies substantially from the wage 

prevailing for the occupation in the area 

of intended employment; or where the 

employer has been unable to 

demonstrate that the prevailing wage 

determined by another legitimate source 

is in accordance with the regulatory 

criteria, the Administrator may contact 

ETA, which shall provide the 

Administrator with a prevailing wage 

determination, which the Administrator 

shall use as the basis for determining 

violations and for computing back 

wages, if such wages are found to be 

owed. The 30-day investigatory period 

shall be suspended while ETA makes 

the prevailing wage determination and, 

in the event that the employer timely 

challenges the determination (see 

§ 655.731(d)(2)), shall be suspended 

until the challenge process is completed 

and the Administrator’s investigation 

can be resumed. 

(2) In the event the Administrator 

obtains a prevailing wage from ETA 

pursuant to paragraph (d)(1) of this 

section, and the employer desires 

review, including judicial review, the 

employer shall challenge the ETA 

prevailing wage only by filing a request 

for review under § 656.41 of this chapter 

within 30 days of the employer’s receipt 

of the prevailing wage determination 

from the Administrator. If the request is 

timely filed, the decision of ETA is 

suspended until the CO issues a 

determination on the employer’s appeal. 

If the employer desires review, 

including judicial review, of the 

decision of the CO, the employer shall 

make a request for review of the 

determination by the Board of Alien 

Labor Certification Appeals (BALCA) 

under § 656.41(e) of this chapter within 

30 days of the receipt of the decision of 

the CO. If a request for review is timely 

filed with the BALCA, the 

determination by the CO is suspended 

until the BALCA issues a determination 

on the employer’s appeal. In any 

challenge to the wage determination, 

neither ETA nor the SESA shall divulge 

any employer wage data which was 

collected under the promise of 

confidentiality. 

(i) Where an employer timely 

challenge an ETA prevailing wage 

determination obtained by the 

Administrator, the 30-day investigative 

period shall be suspended until the 

employer obtains a final ruling. Upon 

such a final ruling, the investigation and 

any subsequent enforcement proceeding 

shall continue, with ETA’s prevailing 

wage determination serving as the 

conclusive determination for all 

purposes.

* * * * *

PART 656—LABOR CERTIFICATION 

PROCESS FOR PERMANENT 

EMPLOYMENT OF ALIENS IN THE 

UNITED STATES

■ 3. Part 656 is revised to read as follows:

Subpart A—Purpose and Scope of Part 656 

Sec. 

656.1 Purpose and scope of part 656. 

656.2 Description of the Immigration and 

Nationality Act and of the Department of 

Labor’s role thereunder.

656.3 Definitions, for purposes of this part, 

of terms used in this part.

Subpart B—Occupational Labor 

Certification Determinations 

656.5 Schedule A.

Subpart C—Labor Certification Process 

656.10 General instructions. 

656.15 Applications for labor certification 

for Schedule A occupations. 

656.16 Labor certification applications for 

sheepherders. 

656.17 Basic labor certification process. 

656.18 Optional special recruitment and 

documentation procedures for college 

and university teachers. 

656.19 Live-in household domestic service 

workers. 

656.20 Audit procedures. 

656.21 Supervised recruitment. 

656.24 Labor certification determinations. 

656.26 Board of Alien Labor Certification 

Appeals review of denials of labor 

certification. 

656.27 Consideration by and decisions of 

the Board of Alien Labor Certification 

Appeals. 

656.30 Validity and invalidation of labor 

certifications. 

656.31 Labor certification applications 

involving fraud or willful 

misrepresentation. 

656.32 Revocation of approved labor 

certifications.

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77387

Subpart D—Determination of Prevailing 

Wage 

656.40 Determination of prevailing wage for 

labor certification purposes. 

656.41 Certifying Officer review of 

prevailing wage determinations.

Authority: The Authority citation for part 

656 is revised to read as follows: 8 U.S.C. 

1182(a)(5)(A), 1189(p)(1); 29 U.S.C. 49 et seq.; 

section 122, Pub. L. 101–649, 109 Stat. 4978; 

and Title IV, Pub. L. 105–277, 112 Stat. 2681.

Subpart A—Purpose and Scope of Part 

656

§ 656.1 Purpose and scope of part 656. 

(a) Under section 212(a)(5)(A) of the 

Immigration and Nationality Act (INA 

or Act) (8 U.S.C. 1182(a)(5)(A)), certain 

aliens may not obtain immigrant visas 

for entrance into the United States in 

order to engage in permanent 

employment unless the Secretary of 

Labor has first certified to the Secretary 

of State and to the Secretary of 

Homeland Security that: 

(1) There are not sufficient United 

States workers who are able, willing, 

qualified and available at the time of 

application for a visa and admission 

into the United States and at the place 

where the alien is to perform the work; 

and 

(2) The employment of the alien will 

not adversely affect the wages and 

working conditions of United States 

workers similarly employed. 

(b) The regulations under this part set 

forth the procedures through which 

such immigrant labor certifications may 

be applied for, and granted or denied. 

(c) Correspondence and questions 

about the regulations in this part should 

be addressed to: Division of Foreign 

Labor Certification, Employment and 

Training Administration, 200 

Constitution Avenue, NW., Room C–

4312, Washington, DC 20210.

§ 656.2 Description of the Immigration and 

Nationality Act and of the Department of 

Labor’s role thereunder. 

(a) Description of the Act. The Act (8 

U.S.C. 1101 et seq.) regulates the 

admission of aliens into the United 

States. The Act designates the Secretary 

of Homeland Security and the Secretary 

of State as the principal administrators 

of its provisions. 

(b) Burden of proof under the Act.

Section 291 of the Act (8 U.S.C. 1361) 

provides, in pertinent part, that:

Whenever any person makes application 

for a visa or any other documentation 

required for entry, or makes application for 

admission, or otherwise attempts to enter the 

United States, the burden of proof shall be 

upon such person to establish that he is 

eligible to receive such visa or such 

document, or is not subject to exclusion 

under any provision of this Act * * *.

(c)(1) Role of the Department of Labor.

The permanent labor certification role of 

the Department of Labor under the Act 

derives from section 212(a)(5)(A) (8 

U.S.C. 1182(a)(5)(A)), which provides 

that any alien who seeks admission or 

status as an immigrant for the purpose 

of employment under paragraph (2) or 

(3) of section 203(b) of the Act may not 

be admitted unless the Secretary of 

Labor has first certified to the Secretary 

of State and to the Secretary of 

Homeland Security that:

(i) There are not sufficient United 

States workers who are able, willing, 

qualified, and available at the time of 

application for a visa and admission to 

the United States and at the place where 

the alien is to perform such skilled or 

unskilled labor; and 

(ii) The employment of such alien 

will not adversely affect the wages and 

working conditions of workers in the 

United States similarly employed. 

(2) This certification is referred to in 

this part 656 as a ‘‘labor certification.’’

(3) We certify the employment of 

aliens in several instances: For the 

permanent employment of aliens under 

this part; and for temporary 

employment of aliens for agricultural 

and nonagricultural employment in the 

United States classified under 8 U.S.C. 

1101(a)(15)(H)(ii), under the DHS 

regulation at 8 CFR 214.2(h)(5) and (6) 

and sections 101(a)(15)(H)(ii), 214, and 

218 of the Act. See 8 U.S.C. 

1101(a)(15)(H)(ii), 1184, and 1188. We 

also administer labor attestation and 

labor condition application programs for 

the admission and/or work 

authorization of the following 

nonimmigrants: Specialty occupations 

and fashion models (H–1B visas), 

specialty occupations from countries 

with which the U.S. has entered 

agreements listed in the INA (H–1B1 

visas), registered nurses (H–1C visas), 

and crewmembers performing longshore 

work (D visas), classified under 8 U.S.C. 

1101(a)(15)(H)(i)(b), 

1101(a)(15)(H)(i)(b1), 

1101(a)(15)(H)(i)(c), and 1101(a)(15)(D), 

respectively. See also 8 U.S.C. 1184(c), 

(m), and (n), and 1288.

§ 656.3 Definitions, for purposes of this 

part, of terms used in this part. 

Act means the Immigration and 

Nationality Act, as amended, 8 U.S.C. 

1101 et seq.

Agent means a person who is not an 

employee of an employer, and who has 

been designated in writing to act on 

behalf of an alien or employer in 

connection with an application for labor 

certification. 

Applicant means a U.S. worker (see 

definition of U.S. worker below) who is 

applying for a job opportunity for which 

an employer has filed an Application for 

Permanent Employment Certification

(ETA Form 9089). 

Application means an Application for 

Permanent Employment Certification

submitted by an employer (or its agent 

or attorney) in applying for a labor 

certification under this part. 

Area of intended employment means 

the area within normal commuting 

distance of the place (address) of 

intended employment. There is no rigid 

measure of distance which constitutes a 

normal commuting distance or normal 

commuting area, because there may be 

widely varying factual circumstances 

among different areas (e.g., normal 

commuting distances might be 20, 30, or 

50 miles). If the place of intended 

employment is within a Metropolitan 

Statistical Area (MSA) or a Primary 

Metropolitan Statistical Area (PMSA), 

any place within the MSA or PMSA is 

deemed to be within normal commuting 

distance of the place of intended 

employment; however, not all locations 

within a Consolidated Metropolitan 

Statistical Area (CMSA) will be deemed 

automatically to be within normal 

commuting distance. The borders of 

MSA’s and PMSA’s are not controlling 

in the identification of the normal 

commuting area; a location outside of an 

MSA or PMSA (or a CMSA) may be 

within normal commuting distance of a 

location that is inside (e.g., near the 

border of) the MSA or PMSA (or 

CMSA). The terminology CMSAs and 

PMSAs are being replaced by the Office 

of Management and Budget (OMB). 

However, ETA will continue to 

recognize the use of these area concepts 

as well as their replacements. 

Attorney means any person who is a 

member in good standing of the bar of 

the highest court of any state, 

possession, territory, or commonwealth 

of the United States, or the District of 

Columbia, and who is not under 

suspension or disbarment from practice 

before any court or before DHS or the 

United States Department of Justice’s 

Executive Office for Immigration 

Review. Such a person is permitted to 

act as an agent, representative, or 

attorney for an employer and/or alien 

under this part. 

Board of Alien Labor Certification 

Appeals (BALCA or Board) means the 

permanent Board established by this 

part, chaired by the Chief 

Administrative Law Judge, and 

consisting of Administrative Law Judges 

assigned to the Department of Labor and 

designated by the Chief Administrative 

Law Judge to be members of the Board 

of Alien Labor Certification Appeals. 

The Board of Alien Labor Certification 

77388 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

Appeals is located in Washington, DC, 

and reviews and decides appeals in 

Washington, DC. 

Certifying Officer (CO) means a 

Department of Labor official who makes 

determinations about whether or not to 

grant applications for labor 

certifications. 

Closely-held Corporation means a 

corporation that typically has relatively 

few shareholders and whose shares are 

not generally traded in the securities 

market. 

Division of Foreign Labor Certification

means the organizational component 

within the Employment and Training 

Administration that provides national 

leadership and policy guidance and 

develops regulations and procedures to 

carry out the responsibilities of the 

Secretary of Labor under the 

Immigration and Nationality Act, as 

amended, concerning alien workers 

seeking admission to the United States 

in order to work under section 

212(a)(5)(A) of the Immigration and 

Nationality Act, as amended. 

Employer means: 

(1) A person, association, firm, or a 

corporation that currently has a location 

within the United States to which U.S. 

workers may be referred for 

employment and that proposes to 

employ a full-time employee at a place 

within the United States, or the 

authorized representative of such a 

person, association, firm, or corporation. 

An employer must possess a valid 

Federal Employer Identification Number 

(FEIN). For purposes of this definition, 

an ‘‘authorized representative’’ means 

an employee of the employer whose 

position or legal status authorizes the 

employee to act for the employer in 

labor certification matters. A labor 

certification can not be granted for an 

Application for Permanent Employment 

Certification filed on behalf of an 

independent contractor. 

(2) Persons who are temporarily in the 

United States, including but not limited 

to, foreign diplomats, intra-company 

transferees, students, and exchange 

visitors, visitors for business or 

pleasure, and representatives of foreign 

information media can not be employers 

for the purpose of obtaining a labor 

certification for permanent employment. 

Employment means: 

(1) Permanent, full-time work by an 

employee for an employer other than 

oneself. For purposes of this definition, 

an investor is not an employee. In the 

event of an audit, the employer must be 

prepared to document the permanent 

and full-time nature of the position by 

furnishing position descriptions and 

payroll records for the job opportunity 

involved in the Application for 

Permanent Employment Certification.

(2) Job opportunities consisting solely 

of job duties that will be performed 

totally outside the United States, its 

territories, possessions, or 

commonwealths can not be the subject 

of an Application for Permanent 

Employment Certification. 

Employment and Training 

Administration (ETA) means the agency 

within the Department of Labor (DOL) 

that includes the Division of Foreign 

Labor Certification. 

Immigration Officer means an official 

of the Department of Homeland 

Security, United States Citizenship and 

Immigration Services (USCIS) who 

handles applications for labor 

certifications under this part. 

Job opportunity means a job opening 

for employment at a place in the United 

States to which U.S. workers can be 

referred. 

Nonprofessional occupation means 

any occupation for which the 

attainment of a bachelor’s or higher 

degree is not a usual requirement for the 

occupation. 

Non-profit or tax-exempt organization

for the purposes of § 656.40 means an 

organization that: 

(1) Is defined as a tax exempt 

organization under the Internal Revenue 

Code of 1986, section 501(c)(3), (c)(4), or 

(c)(6) (26 U.S.C. 501(c)(3), (c)(4) or 

(c)(6)); and 

(2) Has been approved as a tax-exempt 

organization for research or educational 

purposes by the Internal Revenue 

Service. 

O*NET means the system developed 

by the Department of Labor, 

Employment and Training 

Administration, to provide to the 

general public information on skills, 

abilities, knowledge, work activities, 

interests and specific vocational 

preparation levels associated with 

occupations. O*NET is based on the 

Standard Occupational Classification 

system. Further information about 

O*NET can be found at http://

www.onetcenter.org. 

Prevailing wage determination (PWD) 

means the prevailing wage provided by 

the State Workforce Agency. 

Professional occupation means an 

occupation for which the attainment of 

a bachelor’s or higher degree is a usual 

education requirement. A beneficiary of 

an application for permanent alien 

employment certification involving a 

professional occupation need not have a 

bachelor’s or higher degree to qualify for 

the professional occupation. However, if 

the employer is willing to accept work 

experience in lieu of a baccalaureate or 

higher degree, such work experience 

must be attainable in the U.S. labor 

market and must be stated on the 

application form. If the employer is 

willing to accept an equivalent foreign 

degree, it must be clearly stated on the 

Application for Permanent Employment 

Certification form. 

Secretary means the Secretary of 

Labor, the chief official of the U.S. 

Department of Labor, or the Secretary’s 

designee. 

Secretary of Homeland Security

means the chief official of the U.S. 

Department of Homeland Security or the 

Secretary of Homeland Security’s 

designee. 

Secretary of State means the chief 

official of the U.S. Department of State 

or the Secretary of State’s designee. 

Specific vocational preparation (SVP)

means the amount of lapsed time 

required by a typical worker to learn the 

techniques, acquire the information, and 

develop the facility needed for average 

performance in a specific job-worker 

situation. Lapsed time is not the same 

as work time. For example, 30 days is 

approximately 1 month of lapsed time 

and not six 5-day work weeks, and 3 

months refers to 3 calendar months and 

not 90 work days. The various levels of 

specific vocational preparation are 

provided below.

Level Time 

1 ........ Short demonstration. 

2 ........ Anything beyond short demonstration up to and including 30 days. 

3 ........ Over 30 days up to and including 3 

months. 

4 ........ Over 3 months up to and including 6 

months. 

5 ........ Over 6 months up to and including 1 

year. 

6 ........ Over 1 year up to and including 2 

years. 

7 ........ Over 2 years up to and including 4 

years. 

8 ........ Over 4 years up to and including 10 

years. 

9 ........ Over 10 years. 

State Workforce Agency (SWA), 

formerly known as State Employment 

Security Agency (SESA), means the state 

agency that receives funds under the 

Wagner-Peyser Act to provide prevailing 

wage determinations to employers, and/

or administers the public labor 

exchange delivered through the state’s 

one-stop delivery system in accordance 

with the Wagner-Peyser Act. 

United States, when used in a 

geographic sense, means the 50 states, 

the District of Columbia, Puerto Rico, 

the U.S. Virgin Islands, and Guam. 

United States worker means any 

worker who is: 

(1) A U.S. citizen;

(2) A U.S. national; 

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77389

(3) Lawfully admitted for permanent 

residence; 

(4) Granted the status of an alien 

lawfully admitted for temporary 

residence under 8 U.S.C. 1160(a), 

1161(a), or 1255a(a)(1); 

(5) Admitted as a refugee under 8 

U.S.C. 1157; or 

(6) Granted asylum under 8 U.S.C. 

1158.

Subpart B—Occupational Labor 

Certification Determinations

§ 656.5 Schedule A. 

We have determined there are not 

sufficient United States workers who are 

able, willing, qualified, and available for 

the occupations listed below on 

Schedule A and the wages and working 

conditions of United States workers 

similarly employed will not be 

adversely affected by the employment of 

aliens in Schedule A occupations. An 

employer seeking a labor certification 

for an occupation listed on Schedule A

may apply for that labor certification 

under § 656.15. 

Schedule A 

(a) Group I: 

(1) Persons who will be employed as 

physical therapists, and who possess all 

the qualifications necessary to take the 

physical therapist licensing examination 

in the state in which they propose to 

practice physical therapy. 

(2) Aliens who will be employed as 

professional nurses; and 

(i) Who have received a Certificate 

from the Commission on Graduates of 

Foreign Nursing Schools (CGFNS); 

(ii) Who hold a permanent, full and 

unrestricted license to practice 

professional nursing in the state of 

intended employment; or 

(iii) Who have passed the National 

Council Licensure Examination for 

Registered Nurses (NCLEX–RN), 

administered by the National Council of 

State Boards of Nursing. 

(3) Definitions of Group I occupations: 

(i) Physical therapist means a person 

who applies the art and science of 

physical therapy to the treatment of 

patients with disabilities, disorders and 

injuries to relieve pain, develop or 

restore function, and maintain 

performance, using physical means, 

such as exercise, massage, heat, water, 

light, and electricity, as prescribed by a 

physician (or a surgeon). 

(ii) Professional nurse means a person 

who applies the art and science of 

nursing which reflects comprehension 

of principles derived from the physical, 

biological and behavioral sciences. 

Professional nursing generally includes 

making clinical judgments involving the 

observation, care and counsel of persons 

requiring nursing care; administering of 

medicines and treatments prescribed by 

the physician or dentist; and 

participation in the activities for the 

promotion of health and prevention of 

illness in others. A program of study for 

professional nurses generally includes 

theory and practice in clinical areas 

such as obstetrics, surgery, pediatrics, 

psychiatry, and medicine. 

(b) Group II: 

(1) Sciences or arts (except performing 

arts). Aliens (except for aliens in the 

performing arts) of exceptional ability in 

the sciences or arts including college 

and university teachers of exceptional 

ability who have been practicing their 

science or art during the year prior to 

application and who intend to practice 

the same science or art in the United 

States. For purposes of this group, the 

term ‘‘science or art’’ means any field of 

knowledge and/or skill with respect to 

which colleges and universities 

commonly offer specialized courses 

leading to a degree in the knowledge 

and/or skill. An alien, however, need 

not have studied at a college or 

university in order to qualify for the 

Group II occupation. 

(2) Performing arts. Aliens of 

exceptional ability in the performing 

arts whose work during the past 12 

months did require, and whose 

intended work in the United States will 

require, exceptional ability.

Subpart C—Labor Certification 

Process

§ 656.10 General instructions. 

(a) Filing of applications. A request 

for a labor certification on behalf of any 

alien who is required by the Act to be 

a beneficiary of a labor certification in 

order to obtain permanent resident 

status in the United States may be filed 

as follows: 

(1) Except as provided in paragraphs 

(a)(2), (3), and (4) of this section, an 

employer seeking a labor certification 

must file under this section and 

§ 656.17. 

(2) An employer seeking a labor 

certification for a college or university 

teacher must apply for a labor 

certification under this section and must 

also file under either § 656.17 or 

§ 656.18. 

(3) An employer seeking labor 

certification for an occupation listed on 

Schedule A must apply for a labor 

certification under this section and 

§ 656.15. 

(4) An employer seeking labor 

certification for a sheepherder must 

apply for a labor certification under this 

section and must also choose to file 

under either § 656.16 or § 656.17. 

(b) Representation. (1) Employers may 

have agents or attorneys represent them 

throughout the labor certification 

process. If an employer intends to be 

represented by an agent or attorney, the 

employer must sign the statement set 

forth on the Application for Permanent 

Employment Certification form: That the 

attorney or agent is representing the 

employer and the employer takes full 

responsibility for the accuracy of any 

representations made by the attorney or 

agent. Whenever, under this part, any 

notice or other document is required to 

be sent to the employer, the document 

will be sent to the attorney or agent who 

has been authorized to represent the 

employer on the Application for 

Permanent Employment Certification

form.

(2)(i) It is contrary to the best interests 

of U.S. workers to have the alien and/

or agents or attorneys for either the 

employer or the alien participate in 

interviewing or considering U.S. 

workers for the job offered the alien. As 

the beneficiary of a labor certification 

application, the alien can not represent 

the best interests of U.S. workers in the 

job opportunity. The alien’s agent and/

or attorney can not represent the alien 

effectively and at the same time truly be 

seeking U.S. workers for the job 

opportunity. Therefore, the alien and/or 

the alien’s agent and/or attorney may 

not interview or consider U.S. workers 

for the job offered to the alien, unless 

the agent and/or attorney is the 

employer’s representative, as described 

in paragraph (b)(2)(ii) of this section. 

(ii) The employer’s representative 

who interviews or considers U.S. 

workers for the job offered to the alien 

must be the person who normally 

interviews or considers, on behalf of the 

employer, applicants for job 

opportunities such as that offered the 

alien, but which do not involve labor 

certifications. 

(3) No person under suspension or 

disbarment from practice before any 

court or before the DHS or the United 

States Department of Justice’s Executive 

Office for Immigration Review is 

permitted to act as an agent, 

representative, or attorney for an 

employer and/or alien under this part. 

(c) Attestations. The employer must 

certify to the conditions of employment 

listed below on the Application for 

Permanent Employment Certification

under penalty of perjury under 18 

U.S.C. 1621 (2). Failure to attest to any 

of the conditions listed below results in 

a denial of the application. 

(1) The offered wage equals or 

exceeds the prevailing wage determined 

77390 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

pursuant to § 656.40 and § 656.41, and 

the wage the employer will pay to the 

alien to begin work will equal or exceed 

the prevailing wage that is applicable at 

the time the alien begins work or from 

the time the alien is admitted to take up 

the certified employment; 

(2) The wage offered is not based on 

commissions, bonuses or other 

incentives, unless the employer 

guarantees a prevailing wage paid on a 

weekly, bi-weekly, or monthly basis that 

equals or exceeds the prevailing wage; 

(3) The employer has enough funds 

available to pay the wage or salary 

offered the alien; 

(4) The employer will be able to place 

the alien on the payroll on or before the 

date of the alien’s proposed entrance 

into the United States; 

(5) The job opportunity does not 

involve unlawful discrimination by 

race, creed, color, national origin, age, 

sex, religion, handicap, or citizenship; 

(6) The employer’s job opportunity is 

not: 

(i) Vacant because the former 

occupant is on strike or locked out in 

the course of a labor dispute involving 

a work stoppage; 

(ii) At issue in a labor dispute 

involving a work stoppage. 

(7) The job opportunity’s terms, 

conditions and occupational 

environment are not contrary to Federal, 

state or local law; 

(8) The job opportunity has been and 

is clearly open to any U.S. worker; 

(9) The U.S. workers who applied for 

the job opportunity were rejected for 

lawful job-related reasons; 

(10) The job opportunity is for fulltime, permanent employment for an 

employer other than the alien.

(d) Notice. (1) In applications filed 

under §§ 656.15 (Schedule A), 656.16 

(Sheepherders), 656.17 (Basic Process), 

656.18 (College and University 

Teachers), and 656.21 (Supervised 

Recruitment), the employer must give 

notice of the filing of the Application for 

Permanent Employment Certification

and be able to document that notice was 

provided, if requested by the Certifying 

Officer, as follows: 

(i) To the bargaining representative(s) 

(if any) of the employer’s employees in 

the occupational classification for 

which certification of the job 

opportunity is sought in the employer’s 

location(s) in the area of intended 

employment. Documentation may 

consist of a copy of the letter and a copy 

of the Application for Permanent 

Employment Certification form that was 

sent to the bargaining representative. 

(ii) If there is no such bargaining 

representative, by posted notice to the 

employer’s employees at the facility or 

location of the employment. The notice 

must be posted for at least 10 

consecutive business days. The notice 

must be clearly visible and unobstructed 

while posted and must be posted in 

conspicuous places where the 

employer’s U.S. workers can readily 

read the posted notice on their way to 

or from their place of employment. 

Appropriate locations for posting 

notices of the job opportunity include 

locations in the immediate vicinity of 

the wage and hour notices required by 

29 CFR 516.4 or occupational safety and 

health notices required by 29 CFR 

1903.2(a). In addition, the employer 

must publish the notice in any and all 

in-house media, whether electronic or 

printed, in accordance with the normal 

procedures used for the recruitment of 

similar positions in the employer’s 

organization. The documentation 

requirement may be satisfied by 

providing a copy of the posted notice 

and stating where it was posted, and by 

providing copies of all the in-house 

media, whether electronic or print, that 

were used to distribute notice of the 

application in accordance with the 

procedures used for similar positions 

within the employer’s organization. 

(2) In the case of a private household, 

notice is required under this paragraph 

(d) only if the household employs one 

or more U.S. workers at the time the 

application for labor certification is 

filed. The documentation requirement 

may be satisfied by providing a copy of 

the posted notice to the Certifying 

Officer. 

(3) The notice of the filing of an 

Application for Permanent Employment 

Certification must: 

(i) State the notice is being provided 

as a result of the filing of an application 

for permanent alien labor certification 

for the relevant job opportunity; 

(ii) State any person may provide 

documentary evidence bearing on the 

application to the Certifying Officer of 

the Department of Labor; 

(iii) Provide the address of the 

appropriate Certifying Officer; and 

(iv) Be provided between 30 and 180 

days before filing the application. 

(4) If an application is filed under 

§ 656.17, the notice must contain the 

information required for advertisements 

by § 656.17(f), must state the rate of pay 

(which must equal or exceed the 

prevailing wage entered by the SWA on 

the prevailing wage request form), and 

must contain the information required 

by paragraph (d)(3) of this section. 

(5) If an application is filed on behalf 

of a college and university teacher 

selected in a competitive selection and 

recruitment process, as provided by 

§ 656.18, the notice must include the 

information required for advertisements 

by § 656.18(b)(2), and must include the 

information required by paragraph (d)(3) 

of this section. 

(6) If an application is filed under the 

Schedule A procedures at § 656.15, or 

the procedures for sheepherders at 

§ 656.16, the notice must contain a 

description of the job and rate of pay, 

and must meet the requirements of this 

section. 

(e)(1)(i) Submission of evidence. Any 

person may submit to the Certifying 

Officer documentary evidence bearing 

on an application for permanent alien 

labor certification filed under the basic 

labor certification process at § 656.17 or 

an application involving a college and 

university teacher selected in a 

competitive recruitment and selection 

process under § 656.18. 

(ii) Documentary evidence submitted 

under paragraph (e)(1)(i) of this section 

may include information on available 

workers, information on wages and 

working conditions, and information on 

the employer’s failure to meet the terms 

and conditions for the employment of 

alien workers and co-workers. The 

Certifying Officer must consider this 

information in making his or her 

determination. 

(2)(i) Any person may submit to the 

appropriate DHS office documentary 

evidence of fraud or willful 

misrepresentation in a Schedule A

application filed under § 656.15 or a 

sheepherder application filed under 

§ 656.16. 

(ii) Documentary evidence submitted 

under paragraph (e)(2) of this section is 

limited to information relating to 

possible fraud or willful 

misrepresentation. The DHS may 

consider this information under 

§ 656.31. 

(f) Retention of Documents. Copies of 

applications for permanent employment 

certification filed with the Department 

of Labor and all supporting 

documentation must be retained by the 

employer for 5 years from the date of 

filing the Application for Permanent 

Employment Certification.

§ 656.15 Applications for labor 

certification for Schedule A occupations. 

(a) Filing application. An employer 

must apply for a labor certification for 

a Schedule A occupation by filing an 

application in duplicate with the 

appropriate DHS office, and not with an 

ETA application processing center. 

(b) General documentation 

requirements. A Schedule A application 

must include: 

(1) An Application for Permanent 

Employment Certification form, which 

includes a prevailing wage 

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77391

determination in accordance with 

§ 656.40 and § 656.41. 

(2) Evidence that notice of filing the 

Application for Permanent Employment 

Certification was provided to the 

bargaining representative or the 

employer’s employees as prescribed in 

§ 656.10(d). 

(c) Group I documentation. An 

employer seeking labor certification 

under Group I of Schedule A must file 

with DHS, as part of its labor 

certification application, documentary 

evidence of the following: 

(1) An employer seeking Schedule A

labor certification for an alien to be 

employed as a physical therapist 

(§ 656.5(a)(1)) must file as part of its 

labor certification application a letter or 

statement, signed by an authorized state 

physical therapy licensing official in the 

state of intended employment, stating 

the alien is qualified to take that state’s 

written licensing examination for 

physical therapists. Application for 

certification of permanent employment 

as a physical therapist may be made 

only under this § 656.15 and not under 

§ 656.17. 

(2) An employer seeking a Schedule A

labor certification for an alien to be 

employed as a professional nurse 

(§ 656.5(a)(2)) must file as part of its 

labor certification application 

documentation that the alien has 

received a Certificate from the 

Commission on Graduates of Foreign 

Nursing Schools (CGFNS); that the alien 

holds a full and unrestricted 

(permanent) license to practice nursing 

in the state of intended employment; or 

that the alien has passed the National 

Council Licensure Examination for 

Registered Nurses (NCLEX–RN). 

Application for certification of 

employment as a professional nurse 

may be made only under this § 656.15(c) 

and not under § 656.17. 

(d) Group II documentation. An 

employer seeking a Schedule A labor 

certification under Group II of Schedule 

A must file with DHS, as part of its labor 

certification application, documentary 

evidence of the following: 

(1) An employer seeking labor 

certification on behalf of an alien to be 

employed as an alien of exceptional 

ability in the sciences or arts (excluding 

those in the performing arts) must file 

documentary evidence showing the 

widespread acclaim and international 

recognition accorded the alien by 

recognized experts in the alien’s field; 

and documentation showing the alien’s 

work in that field during the past year 

did, and the alien’s intended work in 

the United States will, require 

exceptional ability. In addition, the 

employer must file documentation 

about the alien from at least two of the 

following seven groups: 

(i) Documentation of the alien’s 

receipt of internationally recognized 

prizes or awards for excellence in the 

field for which certification is sought; 

(ii) Documentation of the alien’s 

membership in international 

associations, in the field for which 

certification is sought, which require 

outstanding achievement of their 

members, as judged by recognized 

international experts in their disciplines 

or fields; 

(iii) Published material in 

professional publications about the 

alien, about the alien’s work in the field 

for which certification is sought, which 

shall include the title, date, and author 

of such published material; 

(iv) Evidence of the alien’s 

participation on a panel, or 

individually, as a judge of the work of 

others in the same or in an allied field 

of specialization to that for which 

certification is sought; 

(v) Evidence of the alien’s original 

scientific or scholarly research 

contributions of major significance in 

the field for which certification is 

sought; 

(vi) Evidence of the alien’s authorship 

of published scientific or scholarly 

articles in the field for which 

certification is sought, in international 

professional journals or professional 

journals with an international 

circulation; 

(vii) Evidence of the display of the 

alien’s work, in the field for which 

certification is sought, at artistic 

exhibitions in more than one country. 

(2) An employer seeking labor 

certification on behalf of an alien of 

exceptional ability in the performing 

arts must file documentary evidence 

that the alien’s work experience during 

the past twelve months did require, and 

the alien’s intended work in the United 

States will require, exceptional ability; 

and must submit documentation to 

show this exceptional ability, such as: 

(i) Documentation attesting to the 

current widespread acclaim and 

international recognition accorded to 

the alien, and receipt of internationally 

recognized prizes or awards for 

excellence;

(ii) Published material by or about the 

alien, such as critical reviews or articles 

in major newspapers, periodicals, and/

or trade journals (the title, date, and 

author of such material shall be 

indicated); 

(iii) Documentary evidence of 

earnings commensurate with the 

claimed level of ability; 

(iv) Playbills and star billings; 

(v) Documents attesting to the 

outstanding reputation of theaters, 

concert halls, night clubs, and other 

establishments in which the alien has 

appeared or is scheduled to appear; 

and/or 

(vi) Documents attesting to the 

outstanding reputation of theaters or 

repertory companies, ballet troupes, 

orchestras, or other organizations in 

which or with which the alien has 

performed during the past year in a 

leading or starring capacity. 

(e) Determination. An Immigration 

Officer determines whether the 

employer and alien have met the 

applicable requirements of § 656.10 and 

of Schedule A (§ 656.5); reviews the 

application; and determines whether or 

not the alien is qualified for and intends 

to pursue the Schedule A occupation. 

The Schedule A determination of DHS 

is conclusive and final. The employer, 

therefore, may not appeal from any such 

determination under the review 

procedures at § 656.26. 

(f) Department of Labor copy. If the 

alien qualifies for the occupation, the 

Immigration Officer must indicate the 

occupation on the Application for 

Permanent Employment Certification

form. The Immigration Officer then 

must promptly forward a copy of the 

Application for Permanent Employment 

Certification form, without attachments, 

to the Chief, Division of Foreign Labor 

Certification, indicating thereon the 

occupation, the Immigration Officer 

who made the Schedule A

determination, and the date of the 

determination (see § 656.30 for the 

significance of this date). 

(g) Refiling after denial. If an 

application for a Schedule A occupation 

is denied, the employer, except where 

the occupation is as a physical therapist 

or a professional nurse, may at any time 

file for a labor certification on the alien 

beneficiary’s behalf under § 656.17. 

Labor certifications for professional 

nurses and for physical therapists shall 

not be considered under § 656.17.

§ 656.16 Labor certification applications 

for sheepherders. 

(a) Filing requirements and required 

documentation. (1) An employer may 

apply for a labor certification to employ 

an alien (who has been employed 

legally as a nonimmigrant sheepherder 

in the United States for at least 33 of the 

preceding 36 months) as a sheepherder 

by filing an Application for Permanent 

Employment Certification form directly 

with DHS, not with an office of DOL. 

(2) A signed letter or letters from each 

U.S. employer who has employed the 

alien as a sheepherder during the 

immediately preceding 36 months, 

77392 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

attesting the alien has been employed in 

the United States lawfully and 

continuously as a sheepherder for at 

least 33 of the immediately preceding 36 

months, must be filed with the 

application. 

(b) Determination. An Immigration 

Officer reviews the application and the 

letters attesting to the alien’s previous 

employment as a sheepherder in the 

United States, and determines whether 

or not the alien and the employer(s) 

have met the requirements of this 

section. 

(1) The determination of the 

Immigration Officer under this 

paragraph (b) is conclusive and final. 

The employer(s) and the alien, 

therefore, may not make use of the 

review procedures set forth at §§ 656.26 

and 656.27 to appeal such a 

determination. 

(2) If the alien and the employer(s) 

have met the requirements of this 

section, the Immigration Officer must 

indicate on the Application for 

Permanent Employment Certification

form the occupation, the immigration 

office that made the determination, and 

the date of the determination (see 

§ 656.30 for the significance of this 

date). The Immigration Officer must 

then promptly forward a copy of the 

Application for Permanent Employment 

Certification form, without attachments, 

to the Chief, Division of Foreign Labor 

Certification. 

(c) Alternative filing. If an application 

for a sheepherder does not meet the 

requirements of this section, the 

application may be filed under § 656.17.

§ 656.17 Basic labor certification process. 

(a) Filing applications. (1) Except as 

otherwise provided by §§ 656.15, 

656.16, and 656.18, an employer who 

desires to apply for a labor certification 

on behalf of an alien must file a 

completed Department of Labor 

Application for Permanent Employment 

Certification form (ETA Form 9089). 

The application must be filed with an 

ETA application processing center. 

Incomplete applications will be denied. 

Applications filed and certified 

electronically must, upon receipt of the 

labor certification, be signed 

immediately by the employer in order to 

be valid. Applications submitted by 

mail must contain the original signature 

of the employer, alien, attorney, and/or 

agent when they are received by the 

application processing center. DHS will 

not process petitions unless they are 

supported by an original certified ETA 

Form 9089 that has been signed by the 

employer, alien, attorney and/or agent. 

(2) The Department of Labor may 

issue or require the use of certain 

identifying information, including user 

identifiers, passwords, or personal 

identification numbers (PINS). The 

purpose of these personal identifiers is 

to allow the Department of Labor to 

associate a given electronic submission 

with a single, specific individual. 

Personal identifiers can not be issued to 

a company or business. Rather, a 

personal identifier can only be issued to 

specific individual. Any personal 

identifiers must be used solely by the 

individual to whom they are assigned 

and can not be used or transferred to 

any other individual. An individual 

assigned a personal identifier must take 

all reasonable steps to ensure that his or 

her personal identifier can not be 

compromised. If an individual assigned 

a personal identifier suspects, or 

becomes aware, that his or her personal 

identifier has been compromised or is 

being used by someone else, then the 

individual must notify the Department 

of Labor immediately of the incident 

and cease the electronic transmission of 

any further submissions under that 

personal identifier until such time as a 

new personal identifier is provided. 

Any electronic transmissions submitted 

with a personal identifier will be 

presumed to be a submission by the 

individual assigned that personal 

identifier. The Department of Labor’s 

system will notify those making 

submissions of these requirements at the 

time of each submission. 

(3) Documentation supporting the 

application for labor certification should 

not be filed with the application, 

however in the event the Certifying 

Officer notifies the employer that its 

application is to be audited, the 

employer must furnish required 

supporting documentation prior to a 

final determination.

(b) Processing. (1) Applications are 

screened and are certified, are denied, 

or are selected for audit. 

(2) Employers will be notified if their 

applications have been selected for 

audit by the issuance of an audit letter 

under § 656.20. 

(3) Applications may be selected for 

audit in accordance with selection 

criteria or may be randomly selected. 

(c) Filing date. Non-electronically 

filed applications accepted for 

processing shall be date stamped. 

Electronically filed applications will be 

considered filed when submitted. 

(d) Refiling Procedures. (1) Employers 

that filed applications under the 

regulations in effect prior to March 28, 

2005, may, if a job order has not been 

placed pursuant to those regulations, 

refile such applications under this part 

without loss of the original filing date 

by: 

(i) Submitting an application for an 

identical job opportunity after 

complying with all of the filing and 

recruiting requirements of this part 656; 

and 

(ii) Withdrawing the original 

application in accordance with ETA 

procedures. Filing an application under 

this part stating the employer’s desire to 

use the original filing date will be 

deemed to be a withdrawal of the 

original application. The original 

application will be deemed withdrawn 

regardless of whether the employer’s 

request to use the original filing date is 

approved. 

(2) Refilings under this paragraph 

must be made within 210 days of the 

withdrawal of the prior application. 

(3) A copy of the original application, 

including amendments, must be sent to 

the appropriate ETA application 

processing center when requested by the 

CO under § 656.20. 

(4) For purposes of paragraph (d)(1)(i) 

of this section, a job opportunity shall 

be considered identical if the employer, 

alien, job title, job location, job 

requirements, and job description are 

the same as those stated in the original 

application filed under the regulations 

in effect prior to March 28, 2005. For 

purposes of determining identical job 

opportunity, the original application 

includes all accepted amendments up to 

the time the application was withdrawn, 

including amendments in response to 

an assessment notice from a SWA 

pursuant to § 656.21(h) of the 

regulations in effect prior to March 28, 

2005. 

(e) Required pre-filing recruitment.

Except for labor certification 

applications involving college or 

university teachers selected pursuant to 

a competitive recruitment and selection 

process (§ 656.18), Schedule A

occupations (§§ 656.5 and 656.15), and 

sheepherders (§ 656.16), an employer 

must attest to having conducted the 

following recruitment prior to filing the 

application: 

(1) Professional occupations. If the 

application is for a professional 

occupation, the employer must conduct 

the recruitment steps within 6 months 

of filing the application for alien 

employment certification. The employer 

must maintain documentation of the 

recruitment and be prepared to submit 

this documentation in the event of an 

audit or in response to a request from 

the Certifying Officer prior to rendering 

a final determination.

(i) Mandatory steps. Two of the steps, 

a job order and two print 

advertisements, are mandatory for all 

applications involving professional 

occupations, except applications for 

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77393

college or university teachers selected in 

a competitive selection and recruitment 

process as provided in § 656.18. The 

mandatory recruitment steps must be 

conducted at least 30 days, but no more 

than 180 days, before the filing of the 

application. 

(A) Job order. Placement of a job order 

with the SWA serving the area of 

intended employment for a period of 30 

days. The start and end dates of the job 

order entered on the application shall 

serve as documentation of this step. 

(B) Advertisements in newspaper or 

professional journals. (1) Placing an 

advertisement on two different Sundays 

in the newspaper of general circulation 

in the area of intended employment 

most appropriate to the occupation and 

the workers likely to apply for the job 

opportunity and most likely to bring 

responses from able, willing, qualified, 

and available U.S. workers. 

(2) If the job opportunity is located in 

a rural area of intended employment 

that does not have a newspaper with a 

Sunday edition, the employer may use 

the edition with the widest circulation 

in the area of intended employment. 

(3) The advertisements must satisfy 

the requirements of paragraph (f) of this 

section. Documentation of this step can 

be satisfied by furnishing copies of the 

newspaper pages in which the 

advertisements appeared or proof of 

publication furnished by the newspaper. 

(4) If the job involved in the 

application requires experience and an 

advanced degree, and a professional 

journal normally would be used to 

advertise the job opportunity, the 

employer may, in lieu of one of the 

Sunday advertisements, place an 

advertisement in the professional 

journal most likely to bring responses 

from able, willing, qualified, and 

available U.S. workers. Documentation 

of this step can be satisfied by providing 

a copy of the page in which the 

advertisement appeared. 

(ii) Additional recruitment steps. The 

employer must select three additional 

recruitment steps from the alternatives 

listed in paragraphs (e)(1)(ii)(A)–(J) of 

this section. Only one of the additional 

steps may consist solely of activity that 

took place within 30 days of the filing 

of the application. None of the steps 

may have taken place more than 180 

days prior to filing the application. 

(A) Job fairs. Recruitment at job fairs 

for the occupation involved in the 

application, which can be documented 

by brochures advertising the fair and 

newspaper advertisements in which the 

employer is named as a participant in 

the job fair. 

(B) Employer’s Web site. The use of 

the employer’s Web site as a recruitment 

medium can be documented by 

providing dated copies of pages from 

the site that advertise the occupation 

involved in the application. 

(C) Job search Web site other than the 

employer’s. The use of a job search Web 

site other than the employer’s can be 

documented by providing dated copies 

of pages from one or more website(s) 

that advertise the occupation involved 

in the application. Copies of web pages 

generated in conjunction with the 

newspaper advertisements required by 

paragraph (e)(1)(i)(B) of this section can 

serve as documentation of the use of a 

Web site other than the employer’s. 

(D) On-campus recruiting. The 

employer’s on-campus recruiting can be 

documented by providing copies of the 

notification issued or posted by the 

college’s or university’s placement 

office naming the employer and the date 

it conducted interviews for employment 

in the occupation. 

(E) Trade or professional 

organizations. The use of professional or 

trade organizations as a recruitment 

source can be documented by providing 

copies of pages of newsletters or trade 

journals containing advertisements for 

the occupation involved in the 

application for alien employment 

certification. 

(F) Private employment firms. The use 

of private employment firms or 

placement agencies can be documented 

by providing documentation sufficient 

to demonstrate that recruitment has 

been conducted by a private firm for the 

occupation for which certification is 

sought. For example, documentation 

might consist of copies of contracts 

between the employer and the private 

employment firm and copies of 

advertisements placed by the private 

employment firm for the occupation 

involved in the application. 

(G) Employee referral program with 

incentives. The use of an employee 

referral program with incentives can be 

documented by providing dated copies 

of employer notices or memoranda 

advertising the program and specifying 

the incentives offered. 

(H) Campus placement offices. The 

use of a campus placement office can be 

documented by providing a copy of the 

employer’s notice of the job opportunity 

provided to the campus placement 

office. 

(I) Local and ethnic newspapers. The 

use of local and ethnic newspapers can 

be documented by providing a copy of 

the page in the newspaper that contains 

the employer’s advertisement. 

(J) Radio and television 

advertisements. The use of radio and 

television advertisements can be 

documented by providing a copy of the 

employer’s text of the employer’s 

advertisement along with a written 

confirmation from the radio or 

television station stating when the 

advertisement was aired.

(2) Nonprofessional occupations. If 

the application is for a nonprofessional 

occupation, the employer must at a 

minimum, place a job order and two 

newspaper advertisements within 6 

months of filing the application. The 

steps must be conducted at least 30 days 

but no more that 180 days before the 

filing of the application. 

(i) Job order. Placing a job order with 

the SWA serving the area of intended 

employment for a period of 30 days. The 

start and end dates of the job order 

entered on the application serve as 

documentation of this step. 

(ii) Newspaper advertisements. (A) 

Placing an advertisement on two 

different Sundays in the newspaper of 

general circulation in the area of 

intended employment most appropriate 

to the occupation and the workers likely 

to apply for the job opportunity. 

(B) If the job opportunity is located in 

a rural area of intended employment 

that does not have a newspaper that 

publishes a Sunday edition, the 

employer may use the newspaper 

edition with the widest circulation in 

the area of intended employment. 

(C) Placement of the newspaper 

advertisements can be documented in 

the same way as provided in paragraph 

(e)(1)(i)(B)(3) of this section for 

professional occupations. 

(D) The advertisements must satisfy 

the requirements of paragraph (f) of this 

section. 

(f) Advertising requirements.

Advertisements placed in newspapers of 

general circulation or in professional 

journals before filing the Application for 

Permanent Employment Certification

must: 

(1) Name the employer; 

(2) Direct applicants to report or send 

resumes, as appropriate for the 

occupation, to the employer; 

(3) Provide a description of the 

vacancy specific enough to apprise the 

U.S. workers of the job opportunity for 

which certification is sought; 

(4) Indicate the geographic area of 

employment with enough specificity to 

apprise applicants of any travel 

requirements and where applicants will 

likely have to reside to perform the job 

opportunity; 

(5) Not contain a wage rate lower than 

the prevailing wage rate; 

(6) Not contain any job requirements 

or duties which exceed the job 

requirements or duties listed on the 

ETA Form 9089; and 

77394 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

(7) Not contain wages or terms and 

conditions of employment that are less 

favorable than those offered to the alien. 

(g) Recruitment report. (1) The 

employer must prepare a recruitment 

report signed by the employer or the 

employer’s representative noted in 

§ 656.10(b)(2)(ii) describing the 

recruitment steps undertaken and the 

results achieved, the number of hires, 

and, if applicable, the number of U.S. 

workers rejected, categorized by the 

lawful job related reasons for such 

rejections. The Certifying Officer, after 

reviewing the employer’s recruitment 

report, may request the U.S. workers’

resumes or applications, sorted by the 

reasons the workers were rejected. 

(2) A U.S. worker is able and qualified 

for the job opportunity if the worker can 

acquire the skills necessary to perform 

the duties involved in the occupation 

during a reasonable period of on-the-job 

training. Rejecting U.S. workers for 

lacking skills necessary to perform the 

duties involved in the occupation, 

where the U.S. workers are capable of 

acquiring the skills during a reasonable 

period of on-the-job training is not a 

lawful job-related reason for rejection of 

the U.S. workers. 

(h) Job duties and requirements. (1) 

The job opportunity’s requirements, 

unless adequately documented as 

arising from business necessity, must be 

those normally required for the 

occupation and must not exceed the 

Specific Vocational Preparation level 

assigned to the occupation as shown in 

the O*NET Job Zones. To establish a 

business necessity, an employer must 

demonstrate the job duties and 

requirements bear a reasonable 

relationship to the occupation in the 

context of the employer’s business and 

are essential to perform the job in a 

reasonable manner. 

(2) A foreign language requirement 

can not be included, unless it is justified 

by business necessity. Demonstrating 

business necessity for a foreign language 

requirement may be based upon the 

following: 

(i) The nature of the occupation, e.g., 

translator; or 

(ii) The need to communicate with a 

large majority of the employer’s 

customers, contractors, or employees 

who can not communicate effectively in 

English, as documented by: 

(A) The employer furnishing the 

number and proportion of its clients, 

contractors, or employees who can not 

communicate in English, and/or a 

detailed plan to market products or 

services in a foreign country; and 

(B) A detailed explanation of why the 

duties of the position for which 

certification is sought requires frequent 

contact and communication with 

customers, employees or contractors 

who can not communicate in English 

and why it is reasonable to believe the 

allegedly foreign-language-speaking 

customers, employees, and contractors 

can not communicate in English.

(3) If the job opportunity involves a 

combination of occupations, the 

employer must document that it has 

normally employed persons for that 

combination of occupations, and/or 

workers customarily perform the 

combination of occupations in the area 

of intended employment, and/or the 

combination job opportunity is based on 

a business necessity. Combination 

occupations can be documented by 

position descriptions and relevant 

payroll records, and/or letters from 

other employers stating their workers 

normally perform the combination of 

occupations in the area of intended 

employment, and/or documentation that 

the combination occupation arises from 

a business necessity. 

(4)(i) Alternative experience 

requirements must be substantially 

equivalent to the primary requirements 

of the job opportunity for which 

certification is sought; and 

(ii) If the alien beneficiary already is 

employed by the employer, and the 

alien does not meet the primary job 

requirements and only potentially 

qualifies for the job by virtue of the 

employer’s alternative requirements, 

certification will be denied unless the 

application states that any suitable 

combination of education, training, or 

experience is acceptable. 

(i) Actual minimum requirements.

DOL will evaluate the employer’s actual 

minimum requirements in accordance 

with this paragraph (i). 

(1) The job requirements, as 

described, must represent the 

employer’s actual minimum 

requirements for the job opportunity. 

(2) The employer must not have hired 

workers with less training or experience 

for jobs substantially comparable to that 

involved in the job opportunity. 

(3) If the alien beneficiary already is 

employed by the employer, in 

considering whether the job 

requirements represent the employer’s 

actual minimums, DOL will review the 

training and experience possessed by 

the alien beneficiary at the time of 

hiring by the employer, including as a 

contract employee. The employer can 

not require domestic worker applicants 

to possess training and/or experience 

beyond what the alien possessed at the 

time of hire unless: 

(i) The alien gained the experience 

while working for the employer, 

including as a contract employee, in a 

position not substantially comparable to 

the position for which certification is 

being sought, or 

(ii) The employer can demonstrate 

that it is no longer feasible to train a 

worker to qualify for the position. 

(4) In evaluating whether the alien 

beneficiary satisfies the employer’s 

actual minimum requirements, DOL 

will not consider any education or 

training obtained by the alien 

beneficiary at the employer’s expense 

unless the employer offers similar 

training to domestic worker applicants. 

(5) For purposes of this paragraph (i): 

(i) The term ‘‘employer’’ means an 

entity with the same Federal Employer 

Identification Number (FEIN), provided 

it meets the definition of an employer at 

§ 656.3. 

(ii) A ‘‘substantially comparable’’ job 

or position means a job or position 

requiring performance of the same job 

duties more than 50 percent of the time. 

This requirement can be documented by 

furnishing position descriptions, the 

percentage of time spent on the various 

duties, organization charts, and payroll 

records. 

(j) Conditions of employment. (1) 

Working conditions must be normal to 

the occupation in the area and industry.

(2) Live-in requirements are 

acceptable for household domestic 

service workers only if the employer can 

demonstrate the requirement is essential 

to perform, in a reasonable manner, the 

job duties as described by the employer 

and there are not cost-effective 

alternatives to a live-in household 

requirement. Mere employer assertions 

do not constitute acceptable 

documentation. For example, a live-in 

requirement could be supported by 

documenting two working parents and 

young children in the household, and/

or the existence of erratic work 

schedules requiring frequent travel and 

a need to entertain business associates 

and clients on short notice. Depending 

upon the situation, acceptable 

documentation could consist of travel 

vouchers, written estimates of costs of 

alternatives such as babysitters, or a 

detailed listing of the frequency and 

length of absences of the employer from 

the home. 

(k) Layoffs. (1) If there has been a 

layoff by the employer applicant in the 

area of intended employment within 6 

months of filing an application 

involving the occupation for which 

certification is sought or in a related 

occupation, the employer must 

document it has notified and considered 

all potentially qualified laid off 

(employer applicant) U.S. workers of the 

job opportunity involved in the 

application and the results of the 

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77395

notification and consideration. A layoff 

shall be considered any involuntary 

separation of one or more employees 

without cause or prejudice. 

(2) For the purposes of paragraph 

(k)(1) of this section, a related 

occupation is any occupation that 

requires workers to perform a majority 

of the essential duties involved in the 

occupation for which certification is 

sought. 

(l) Alien influence and control over 

job opportunity. If the employer is a 

closely held corporation or partnership 

in which the alien has an ownership 

interest, or if there is a familial 

relationship between the stockholders, 

corporate officers, incorporators, or 

partners, and the alien, or if the alien is 

one of a small number of employees, the 

employer in the event of an audit must 

be able to demonstrate the existence of 

a bona fide job opportunity, i.e. the job 

is available to all U.S. workers, and 

must provide to the Certifying Officer, 

the following supporting 

documentation: 

(1) A copy of the articles of 

incorporation, partnership agreement, 

business license or similar documents 

that establish the business entity; 

(2) A list of all corporate/company 

officers and shareholders/partners of the 

corporation/firm/business, their titles 

and positions in the business’ structure, 

and a description of the relationships to 

each other and to the alien beneficiary; 

(3) The financial history of the 

corporation/company/partnership, 

including the total investment in the 

business entity and the amount of 

investment of each officer, incorporator/

partner and the alien beneficiary; and 

(4) The name of the business’ official 

with primary responsibility for 

interviewing and hiring applicants for 

positions within the organization and 

the name(s) of the business’ official(s) 

having control or influence over hiring 

decisions involving the position for 

which labor certification is sought. 

(5) If the alien is one of 10 or fewer 

employees, the employer must 

document any family relationship 

between the employees and the alien.

§ 656.18 Optional special recruitment and 

documentation procedures for college and 

university teachers. 

(a) Filing requirements. Applications 

for certification of employment of 

college and university teachers must be 

filed by submitting a completed 

Application for Permanent Employment 

Certification form to the appropriate 

ETA application processing center. 

(b) Recruitment. The employer may 

recruit for college and university 

teachers under § 656.17 or must be able 

to document the alien was selected for 

the job opportunity in a competitive 

recruitment and selection process 

through which the alien was found to be 

more qualified than any of the United 

States workers who applied for the job. 

For purposes of this paragraph (b), 

documentation of the ‘‘competitive 

recruitment and selection process’’ must 

include: 

(1) A statement, signed by an official 

who has actual hiring authority from the 

employer outlining in detail the 

complete recruitment procedures 

undertaken; and which must set forth: 

(i) The total number of applicants for 

the job opportunity; 

(ii) The specific lawful job-related 

reasons why the alien is more qualified 

than each U.S. worker who applied for 

the job; and 

(2) A final report of the faculty, 

student, and/or administrative body 

making the recommendation or 

selection of the alien, at the completion 

of the competitive recruitment and 

selection process; 

(3) A copy of at least one 

advertisement for the job opportunity 

placed in a national professional 

journal, giving the name and the date(s) 

of publication; and which states the job 

title, duties, and requirements; 

(4) Evidence of all other recruitment 

sources utilized; and

(5) A written statement attesting to the 

degree of the alien’s educational or 

professional qualifications and 

academic achievements. 

(c) Time limit for filing. Applications 

for permanent alien labor certification 

for job opportunities as college and 

university teachers must be filed within 

18 months after a selection is made 

pursuant to a competitive recruitment 

and selection process. 

(d) Alternative procedure. An 

employer that can not or does not 

choose to satisfy the special recruitment 

procedures for a college or university 

teacher under this section may avail 

itself of the basic process at § 656.17. An 

employer that files for certification of 

employment of college and university 

teachers under § 656.17 or this section 

must be able to document, if requested 

by the Certifying Officer, in accordance 

with § 656.24(a)(2)(ii), the alien was 

found to be more qualified than each 

U.S. worker who applied for the job 

opportunity.

§ 656.19 Live-in household domestic 

service workers. 

(a) Processing. Applications on behalf 

of live-in household domestic service 

occupations are processed pursuant to 

the requirements of the basic process at 

§ 656.17. 

(b) Required documentation.

Employers filing applications on behalf 

of live-in household domestic service 

workers must provide, in event of an 

audit, the following documentation: 

(1) A statement describing the 

household living accommodations, 

including the following: 

(i) Whether the residence is a house 

or apartment; 

(ii) The number of rooms in the 

residence; 

(iii) The number of adults and 

children, and ages of the children, 

residing in the household; and 

(iv) That free board and a private 

room not shared with any other person 

will be provided to the alien. 

(2) Two copies of the employment 

contract, each signed and dated prior to 

the filing of the application by both the 

employer and the alien (not by their 

attorneys or agents). The contract must 

clearly state: 

(i) The wages to be paid on an hourly 

and weekly basis; 

(ii) Total hours of employment per 

week, and exact hours of daily 

employment; 

(iii) That the alien is free to leave the 

employer’s premises during all nonwork hours except the alien may work 

overtime if paid for the overtime at no 

less than the legally required hourly 

rate; 

(iv) That the alien will reside on the 

employer’s premises; 

(v) Complete details of the duties to 

be performed by the alien; 

(vi) The total amount of any money to 

be advanced by the employer with 

details of specific items, and the terms 

of repayment by the alien of any such 

advance by the employer; 

(vii) That in no event may the alien 

be required to give more than two 

weeks’ notice of intent to leave the 

employment contracted for and the 

employer must give the alien at least 

two weeks’ notice before terminating 

employment; 

(viii) That a duplicate contract has 

been furnished to the alien; 

(ix) That a private room and board 

will be provided at no cost to the 

worker; and 

(x) Any other agreement or conditions 

not specified on the Application for 

Permanent Employment Certification

form. 

(3) Documentation of the alien’s paid 

experience in the form of statements 

from past or present employers setting 

forth the dates (month and year) 

employment started and ended, hours of 

work per day, number of days worked 

per week, place where the alien worked, 

detailed statement of duties performed 

on the job, equipment and appliances 

77396 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

used, and the amount of wages paid per 

week or month. The total paid 

experience must be equal to one full 

year’s employment on a full-time basis. 

For example, two year’s experience 

working half-days is the equivalent of 

one year’s full time experience. Time 

spent in a household domestic service 

training course can not be included in 

the required one year of paid 

experience. Each statement must 

contain the name and address of the 

person who signed it and show the date 

on which the statement was signed. A 

statement not in English shall be 

accompanied by a written translation 

into English certified by the translator as 

to the accuracy of the translation, and as 

to the translator’s competency to 

translate.

§ 656.20 Audit procedures. 

(a) Review of the labor certification 

application may lead to an audit of the 

application. Additionally, certain 

applications may be selected randomly 

for audit and quality control purposes. 

If an application is selected for audit, 

the Certifying Officer shall issue an 

audit letter. The audit letter will: 

(1) State the documentation that must 

be submitted by the employer;

(2) Specify a date, 30 days from the 

date of the audit letter, by which the 

required documentation must be 

submitted; and 

(3) Advise that if the required 

documentation has not been sent by the 

date specified the application will be 

denied. 

(i) Failure to provide documentation 

in a timely manner constitutes a refusal 

to exhaust available administrative 

remedies; and 

(ii) The administrative-judicial review 

procedure provided in § 656.26 is not 

available. 

(b) A substantial failure by the 

employer to provide required 

documentation will result in that 

application being denied § 656.24 under 

and may result in a determination by 

the Certifying Officer pursuant to 

§ 656.24 to require the employer to 

conduct supervised recruitment under 

§ 656.21 in future filings of labor 

certification applications for up to 2 

years. 

(c) The Certifying Officer may in his 

or her discretion provide one extension, 

of up to 30 days, to the 30 days 

specified in paragraph (a)(2) of this 

section. 

(d) Before making a final 

determination in accordance with the 

standards in § 656.24, whether in course 

of an audit or otherwise, the Certifying 

Officer may: 

(1) Request supplemental information 

and/or documentation; or 

(2) Require the employer to conduct 

supervised recruitment under § 656.21.

§ 656.21 Supervised recruitment. 

(a) Supervised recruitment. Where the 

Certifying Officer determines it 

appropriate, post-filing supervised 

recruitment may be required of the 

employer for the pending application or 

future applications pursuant to 

§ 656.20(b). 

(b) Requirements. Supervised 

recruitment shall consist of advertising 

for the job opportunity by placing an 

advertisement in a newspaper of general 

circulation or in a professional, trade, or 

ethnic publication, and any other 

measures required by the CO. If placed 

in a newspaper of general circulation, 

the advertisement must be published for 

3 consecutive days, one of which must 

be a Sunday; or, if placed in a 

professional, trade, or ethnic 

publication, the advertisement must be 

published in the next available 

published edition. The advertisement 

must be approved by the Certifying 

Officer before publication, and the CO 

will direct where the advertisement is to 

be placed. 

(1) The employer must supply a draft 

advertisement to the CO for review and 

approval within 30 days of being 

notified that supervised recruitment is 

required. 

(2) The advertisement must: 

(i) Direct applicants to send resumes 

or applications for the job opportunity 

to the CO for referral to the employer; 

(ii) Include an identification number 

and an address designated by the 

Certifying Officer; 

(iii) Describe the job opportunity; 

(iv) Not contain a wage rate lower 

than the prevailing wage rate; 

(v) Summarize the employer’s 

minimum job requirements, which can 

not exceed any of the requirements 

entered on the application form by the 

employer; 

(vi) Offer training if the job 

opportunity is the type for which 

employers normally provide training; 

and 

(vii) Offer wages, terms and 

conditions of employment no less 

favorable than those offered to the alien.

(c) Timing of advertisement. (1) The 

advertisement shall be placed in 

accordance with the guidance provided 

by the CO. 

(2) The employer will notify the CO 

when the advertisement will be placed. 

(d) Additional or substitute 

recruitment. The Certifying Officer may 

designate other appropriate sources of 

workers from which the employer must 

recruit for U.S. workers in addition to 

the advertising described in paragraph 

(b) of this section. 

(e) Recruitment report. The employer 

must provide to the Certifying Officer a 

signed, detailed written report of the 

employer’s supervised recruitment, 

signed by the employer or the 

employer’s representative described in 

§ 656.10(b)(2)(ii), within 30 days of the 

Certifying Officer’s request for such a 

report. The recruitment report must: 

(1) Identify each recruitment source 

by name and document that each 

recruitment source named was 

contacted. This can include, for 

example, copies of letters to recruitment 

sources such as unions, trade 

associations, colleges and universities 

and any responses received to the 

employer’s inquiries. Advertisements 

placed in newspapers, professional, 

trade, or ethnic publications can be 

documented by furnishing copies of the 

tear sheets of the pages of the 

publication in which the advertisements 

appeared, proof of publication furnished 

by the publication, or dated copies of 

the web pages if the advertisement 

appeared on the web as well as in the 

publication in which the advertisement 

appeared. 

(2) State the number of U.S. workers 

who responded to the employer’s 

recruitment. 

(3) State the names, addresses, and 

provide resumes (other than those sent 

to the employer by the CO) of the U.S. 

workers who applied for the job 

opportunity, the number of workers 

interviewed, and the job title of the 

person who interviewed the workers. 

(4) Explain, with specificity, the 

lawful job-related reason(s) for not 

hiring each U.S. worker who applied. 

Rejection of one or more U.S. workers 

for lacking skills necessary to perform 

the duties involved in the occupation, 

where the U.S. workers are capable of 

acquiring the skills during a reasonable 

period of on-the-job training, is not a 

lawful job-related reason for rejecting 

the U.S. workers. For the purpose of this 

paragraph (e)(4), a U.S. worker is able 

and qualified for the job opportunity if 

the worker can acquire the skills 

necessary to perform the duties 

involved in the occupation during a 

reasonable period of on-the-job training. 

(f) The employer shall supply the CO 

with the required documentation or 

information within 30 days of the date 

of the request. If the employer does not 

do so, the CO shall deny the 

application. 

(g) The Certifying Officer in his or her 

discretion, for good cause shown, may 

provide one extension to any request for 

documentation or information.

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77397

§ 656.24 Labor certification 

determinations. 

(a)(1) The Chief, Division of Foreign 

Labor Certification is the National 

Certifying Officer. The Chief and the 

certifying officers in the ETA 

application processing centers have the 

authority to certify or deny labor 

certification applications. 

(2) If the labor certification presents a 

special or unique problem, the Director 

of an ETA application processing center 

may refer the matter to the Chief, 

Division of Foreign Labor Certification. 

If the Chief, Division of Foreign Labor 

Certification, has directed that certain 

types of applications or specific 

applications be handled in the ETA 

national office, the Directors of the ETA 

application processing centers shall 

refer such applications to the Chief, 

Division of Foreign Labor Certification. 

(b) The Certifying Officer makes a 

determination either to grant or deny 

the labor certification on the basis of 

whether or not: 

(1) The employer has met the 

requirements of this part. 

(2) There is in the United States a 

worker who is able, willing, qualified, 

and available for and at the place of the 

job opportunity. 

(i) The Certifying Officer must 

consider a U.S. worker able and 

qualified for the job opportunity if the 

worker, by education, training, 

experience, or a combination thereof, is 

able to perform in the normally 

accepted manner the duties involved in 

the occupation as customarily 

performed by other U.S. workers 

similarly employed. For the purposes of 

this paragraph (b)(2)(i), a U.S. worker is 

able and qualified for the job 

opportunity if the worker can acquire 

the skills necessary to perform the 

duties involved in the occupation 

during a reasonable period of on-the-job 

training. 

(ii) If the job involves a job 

opportunity as a college or university 

teacher, the U.S. worker must be at least 

as qualified as the alien. 

(3) The employment of the alien will 

not have an adverse effect upon the 

wages and working conditions of U.S. 

workers similarly employed. In making 

this determination, the Certifying 

Officer considers such things as: labor 

market information, the special 

circumstances of the industry, 

organization, and/or occupation, the 

prevailing wage in the area of intended 

employment, and prevailing working 

conditions, such as hours, in the 

occupation.

(c) The Certifying Officer shall notify 

the employer in writing (either 

electronically or by mail) of the labor 

certification determination. 

(d) If a labor certification is granted, 

except for a labor certification for an 

occupation on Schedule A (§ 656.5) or 

for employment as a sheepherder under 

§ 656.16, the Certifying Officer must 

send the certified application and 

complete Final Determination form to 

the employer, or, if appropriate, to the 

employer’s agent or attorney, indicating 

the employer may file all the documents 

with the appropriate DHS office. 

(e) If the labor certification is denied, 

the Final Determination form will: 

(1) State the reasons for the 

determination; 

(2) Quote the request for review 

procedures at § 656.26 (a) and (b); 

(3) Advise that failure to request 

review within 30 days of the date of the 

determination, as specified in 

§ 656.26(a), constitutes a failure to 

exhaust administrative remedies; 

(4) Advise that, if a request for review 

is not made within 30 days of the date 

of the determination, the denial shall 

become the final determination of the 

Secretary; 

(5) Advise that if an application for a 

labor certification is denied, and a 

request for review is not made in 

accordance with the procedures at 

§ 656.26(a) and (b), a new application 

may be filed at any time; and 

(6) Advise that a new application in 

the same occupation for the same alien 

can not be filed while a request for 

review is pending with the Board of 

Alien Labor Certification Appeals. 

(f) If the Certifying Officer determines 

the employer substantially failed to 

produce required documentation, or the 

documentation was inadequate, or 

determines a material misrepresentation 

was made with respect to the 

application, or if the Certifying Officer 

determines it is appropriate for other 

reasons, the employer may be required 

to conduct supervised recruitment 

pursuant to § 656.21 in future filings of 

labor certification applications for up to 

two years from the date of the Final 

Determination. 

(g)(1) The employer may request 

reconsideration within 30 days from the 

date of issuance of the denial. 

(2) The request for reconsideration 

may not include evidence not 

previously submitted. 

(3) The Certifying Officer may, in his 

or her discretion, reconsider the 

determination or treat it as a request for 

review under § 656.26(a).

§ 656.26 Board of Alien Labor Certification 

Appeals review of denials of labor 

certification. 

(a) Request for review. (1) If a labor 

certification is denied, or revoked 

pursuant to § 656.32, a request for 

review of the denial or revocation may 

be made to the Board of Alien Labor 

Certification Appeals by the employer 

by making a request for such an 

administrative review in accordance 

with the procedures provided in this 

paragraph (a). The request for review: 

(i) Must be sent to the Certifying 

Officer who denied the application 

within 30 days of the date of the 

determination; 

(ii) Must clearly identify the 

particular labor certification 

determination for which review is 

sought; 

(iii) Must set forth the particular 

grounds for the request; and 

(iv) Must include the Final 

Determination. 

(2) The request for review, statements, 

briefs, and other submissions of the 

parties and amicus curiae must contain 

only legal argument and only such 

evidence that was within the record 

upon which the denial of labor 

certification was based. 

(b) Upon the receipt of a request for 

review, the Certifying Officer 

immediately must assemble an indexed 

Appeal File: 

(1) The Appeal File must be in 

chronological order, must have the 

index on top followed by the most 

recent document, and must have 

consecutively numbered pages. The 

Appeal File must contain the request for 

review, the complete application file, 

and copies of all the written material, 

such as pertinent parts and pages of 

surveys and/or reports upon which the 

denial was based. 

(2) The Certifying Officer must send 

the Appeal File to the Board of Alien 

Labor Certification Appeals, Office of 

Administrative Law Judges, 800 K 

Street, NW., Suite 400–N, Washington, 

DC 20001–8002. 

(3) The Certifying Officer must send a 

copy of the Appeal File to the employer. 

The employer may furnish or suggest 

directly to the Board of Alien Labor 

Certification Appeals the addition of 

any documentation that is not in the 

Appeal File, but that was submitted to 

DOL before the issuance of the Final 

Determination. The employer must 

submit such documentation in writing, 

and must send a copy to the Associate 

Solicitor for Employment and Training 

Legal Services, Office of the Solicitor, 

U.S. Department of Labor, Washington, 

DC 20210.

§ 656.27 Consideration by and decisions 

of the Board of Alien Labor Certification 

Appeals. 

(a) Panel designations. In considering 

requests for review before it, the Board 

77398 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

of Alien Labor Certification Appeals 

may sit in panels of three members. The 

Chief Administrative Law Judge may 

designate any Board of Alien Labor 

Certification Appeals member to submit 

proposed findings and 

recommendations to the Board of Alien 

Labor Certification Appeals or to any 

duly designated panel thereof to 

consider a particular case. 

(b) Briefs and Statements of Position.

In considering the requests for review 

before it, the Board of Alien Labor 

Certification Appeals must afford all 

parties 30 days to submit or decline to 

submit any appropriate Statement of 

Position or legal brief. The Certifying 

Officer is to be represented solely by the 

Solicitor of Labor or the Solicitor’s 

designated representative. 

(c) Review on the record. The Board 

of Alien Labor Certification Appeals 

must review a denial of labor 

certification under § 656.24, a 

revocation of a certification under 

§ 656.32, or an affirmation of a 

prevailing wage determination under 

§ 656.41 on the basis of the record upon 

which the decision was made, the 

request for review, and any Statements 

of Position or legal briefs submitted and 

must: 

(1) Affirm the denial of the labor 

certification, the revocation of 

certification, or the affirmation of the 

PWD; or 

(2) Direct the Certifying Officer to 

grant the certification, overrule the 

revocation of certification, or overrule 

the affirmation of the PWD; or 

(3) Direct that a hearing on the case 

be held under paragraph (e) of this 

section. 

(d) Notifications of decisions. The 

Board of Alien Labor Certification 

Appeals must notify the employer, the 

Certifying Officer, and the Solicitor of 

Labor of its decision, and must return 

the record to the Certifying Officer 

unless the case has been set for hearing 

under paragraph (e) of this section. 

(e) Hearings. (1) Notification of 

hearing. If the case has been set for a 

hearing, the Board of Alien Labor 

Certification Appeals must notify the 

employer, the alien, the Certifying 

Officer, and the Solicitor of Labor of the 

date, time, and place of the hearing, and 

that the hearing may be rescheduled 

upon written request and for good cause 

shown. 

(2) Hearing procedure. (i) The ‘‘Rules 

of Practice and Procedure For 

Administrative Hearings Before the 

Office of Administrative Law Judges,’’ at 

29 CFR part 18, apply to hearings under 

this paragraph (e). 

(ii) For the purposes of this paragraph 

(e)(2), references in 29 CFR part 18 to: 

‘‘administrative law judge’’ mean the 

Board of Alien Labor Certification 

Appeals member or the Board of Alien 

Labor Certification Appeals panel duly 

designated under § 656.27(a); ‘‘Office of 

Administrative Law Judges’’ means the 

Board of Alien Labor Certification 

Appeals; and ‘‘Chief Administrative 

Law Judge’’ means the Chief 

Administrative Law Judge in that 

official’s function of chairing the Board 

of Alien Labor Certification Appeals.

§ 656.30 Validity of and invalidation of 

labor certifications. 

(a) Validity of labor certifications.

Except as provided in paragraph (d) of 

this section, a labor certification is valid 

indefinitely. 

(b) Validation date. (1) A labor 

certification involving a job offer is 

validated as of the date the ETA 

application processing center datestamped the application or the date an 

electronically filed application was 

submitted; and 

(2) A labor certification for a Schedule 

A occupation is validated as of the date 

the application was dated by the 

Immigration Officer. 

(c) Scope of validity. (1) A labor 

certification for a Schedule A

occupation is valid only for the 

occupation set forth on the Application 

for Permanent Employment Certification

form and throughout the United States 

unless the certification contains a 

geographic limitation. 

(2) A labor certification involving a 

specific job offer is valid only for the 

particular job opportunity and for the 

area of intended employment stated on 

the Application for Permanent 

Employment Certification form. 

(d) Invalidation of labor certifications.

After issuance, a labor certification may 

be revoked by ETA using the procedures 

described in § 656.32. Additionally, 

after issuance, a labor certification is 

subject to invalidation by the DHS or by 

a Consul of the Department of State 

upon a determination, made in 

accordance with those agencies’

procedures or by a court, of fraud or 

willful misrepresentation of a material 

fact involving the labor certification 

application. If evidence of such fraud or 

willful misrepresentation becomes 

known to the CO or to the Chief, 

Division of Foreign Labor Certification, 

the CO, or the Chief of the Division of 

Foreign Labor Certification, as 

appropriate, shall notify in writing the 

DHS or Department of State, as 

appropriate. A copy of the notification 

must be sent to the regional or national 

office, as appropriate, of the Department 

of Labor’s Office of Inspector General.

(e) Duplicate labor certifications. (1) 

The Certifying Officer shall issue a 

duplicate labor certification at the 

written request of a Consular or 

Immigration Officer. The Certifying 

Officer shall issue such duplicate labor 

certifications only to the Consular or 

Immigration Officer who initiated the 

request. 

(2) The Certifying Officer shall issue 

a duplicate labor certification to a 

Consular or Immigration Officer at the 

written request of an alien, employer, or 

an alien’s or employer’s attorney/agent. 

Such request for a duplicate labor 

certification must be addressed to the 

Certifying Officer who issued the labor 

certification; must include documentary 

evidence from a Consular or 

Immigration Officer that a visa 

application or visa petition, as 

appropriate, has been filed; and must 

include a Consular Office or DHS 

tracking number.

§ 656.31 Labor certification applications 

involving fraud or willful misrepresentation. 

(a) Possible fraud or willful 

misrepresentation. If possible fraud or 

willful misrepresentation involving a 

labor certification is discovered before a 

final labor certification determination; 

the Certifying Officer will refer the 

matter to the DHS for investigation, and 

must send a copy of the referral to the 

Department of Labor’s Office of 

Inspector General. If 90 days pass 

without the filing of a criminal 

indictment or information, or receipt of 

a notification from DHS, DOL OIG, or 

other appropriate authority that an 

investigation is being conducted, the 

Certifying Officer may continue to 

process the application. 

(b) Criminal indictment or 

information. If the DOL learns an 

application is the subject of a criminal 

indictment or information filed in a 

court, the processing of the application 

must be halted until the judicial process 

is completed. The Certifying Officer 

must notify the employer of this fact in 

writing and must send a copy of the 

notification to the alien, and to the 

Department of Labor’s Office of 

Inspector General. 

(c) Finding of no fraud or willful 

misrepresentation. If a court finds there 

was no fraud or willful 

misrepresentation, or if the Department 

of Justice decides not to prosecute, the 

Certifying Officer shall decide the case 

on the merits of the application. 

(d) Finding of fraud or willful 

misrepresentation. If as referenced in 

§ 656.30(d), a court, the DHS or the 

Department of State determines there 

was fraud or willful misrepresentation 

involving a labor certification 

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application, the application will be 

considered to be invalidated, processing 

is terminated, a notice of the 

termination and the reason therefore is 

sent by the Certifying Officer to the 

employer, attorney/agent, as 

appropriate, and a copy of the 

notification is sent by the Certifying 

Officer to the alien and to the 

Department of Labor’s Office of 

Inspector General.

§ 656.32 Revocation of approved labor 

certifications. 

(a) Basis for DOL revocation. The 

Certifying Officer in consultation with 

the Chief, Division of Foreign Labor 

Certification may take steps to revoke an 

approved labor certification, if he/she 

finds the certification was not justified. 

A labor certification may also be 

invalidated by DHS or the Department 

of State as set forth in § 656.30(d). 

(b) Department of Labor procedures 

for revocation. (1) The Certifying Officer 

sends to the employer a Notice of Intent 

to Revoke an approved labor 

certification which contains a detailed 

statement of the grounds for the 

revocation and the time period allowed 

for the employer’s rebuttal. The 

employer may submit evidence in 

rebuttal within 30 days of receipt of the 

notice. The Certifying Officer must 

consider all relevant evidence presented 

in deciding whether to revoke the labor 

certification. 

(2) If rebuttal evidence is not filed by 

the employer, the Notice of Intent to 

Revoke becomes the final decision of the 

Secretary. 

(3) If the employer files rebuttal 

evidence and the Certifying Officer 

determines the certification should be 

revoked, the employer may file an 

appeal under § 656.26. 

(4) The Certifying Officer will inform 

the employer within 30 days of 

receiving any rebuttal evidence whether 

or not the labor certification will be 

revoked. 

(5) If the labor certification is revoked, 

the Certifying Officer will also send a 

copy of the notification to the DHS and 

the Department of State.

Subpart D—Determination of 

Prevailing Wage

§ 656.40 Determination of prevailing wage 

for labor certification purposes. 

(a) Application process. The employer 

must request a prevailing wage 

determination from the SWA having 

jurisdiction over the proposed area of 

intended employment. The SWA must 

enter its wage determination on the 

form it uses and return the form with its 

endorsement to the employer. Unless 

the employer chooses to appeal the 

SWA’s prevailing wage determination 

under § 656.41(a), it files the 

Application for Permanent Employment 

Certification either electronically or by 

mail with an ETA application 

processing center and maintains the 

SWA PWD in its files. The 

determination shall be submitted to an 

ETA application processing center in 

the event it is requested in the course of 

an audit.

(b) Determinations. The SWA 

determines the prevailing wage as 

follows: 

(1) Except as provided in paragraphs 

(e) and (f) of this section, if the job 

opportunity is covered by a collective 

bargaining agreement (CBA) that was 

negotiated at arms-length between the 

union and the employer, the wage rate 

set forth in the CBA agreement is 

considered as not adversely affecting the 

wages of U.S. workers similarly 

employed, that is, it is considered the 

‘‘prevailing wage’’ for labor certification 

purposes. 

(2) If the job opportunity is not 

covered by a CBA, the prevailing wage 

for labor certification purposes shall be 

the arithmetic mean, except as provided 

in paragraph (b)(3) of this section, of the 

wages of workers similarly employed in 

the area of intended employment. The 

wage component of the DOL 

Occupational Employment Statistics 

Survey shall be used to determine the 

arithmetic mean, unless the employer 

provides an acceptable survey under 

paragraph (g) of this section. 

(3) If the employer provides a survey 

acceptable under paragraph (g) of this 

section that provides a median and does 

not provide an arithmetic mean, the 

prevailing wage applicable to the 

employer’s job opportunity shall be the 

median of the wages of workers 

similarly employed in the area of 

intended employment. 

(4) The employer may utilize a 

current wage determination in the area 

under the Davis-Bacon Act, 40 U.S.C. 

276a et seq., 29 CFR part 1, or the 

McNamara-O’Hara Service Contract Act, 

41 U.S.C. 351 et seq.

(c) Validity period. The SWA must 

specify the validity period of the 

prevailing wage, which in no event may 

be less than 90 days or more than 1 year 

from the determination date. To use a 

SWA PWD, employers must file their 

applications or begin the recruitment 

required by §§ 656.17(d) or 656.21 

within the validity period specified by 

the SWA. 

(d) Similarly employed. For purposes 

of this section, similarly employed 

means having substantially comparable 

jobs in the occupational category in the 

area of intended employment, except 

that, if a representative sample of 

workers in the occupational category 

can not be obtained in the area of 

intended employment, similarly 

employed means: 

(1) Having jobs requiring a 

substantially similar level of skills 

within the area of intended 

employment; or 

(2) If there are no substantially 

comparable jobs in the area of intended 

employment, having substantially 

comparable jobs with employers outside 

of the area of intended employment. 

(e) Institutions of higher education 

and research entities. In computing the 

prevailing wage for a job opportunity in 

an occupational classification in an area 

of intended employment for an 

employee of an institution of higher 

education, or an affiliated or related 

nonprofit entity, a nonprofit research 

organization, or a Governmental 

research organization, the prevailing 

wage level takes into account the wage 

levels of employees only at such 

institutions and organizations in the 

area of intended employment. 

(1) The organizations listed in this 

paragraph (e) are defined as follows: 

(i) Institution of higher education

means an institution of higher education 

as defined in section 101(a) of the 

Higher Education Act of 1965. Section 

101(a) of that Act, 20 U.S.C. 

1001(a)(2000), provides an institution of 

higher education is an educational 

institution in any state that: 

(A) Admits as regular students only 

persons having a certificate of 

graduation from a school providing 

secondary education, or the recognized 

equivalent of such a certificate; 

(B) Is legally authorized within such 

state to provide a program of education 

beyond secondary education; 

(C) Provides an educational program 

for which the institution awards a 

bachelor’s degree or provides not less 

than a two-year program that is 

acceptable for full credit toward such a 

degree; 

(D) Is a public or other nonprofit 

institution; and 

(E) Is accredited by a nationally 

recognized accrediting agency or 

association or, if not so accredited, is an 

institution that has been granted 

preaccreditation status by such an 

agency or association that has been 

recognized by the Secretary of 

Education for the granting of 

preaccreditation status, and the 

Secretary of Education has determined 

there is satisfactory assurance the 

institution will meet the accreditation 

standards of such an agency or 

association within a reasonable time. 

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(ii) Affiliated or related nonprofit 

entity means a nonprofit entity 

(including but not limited to a hospital 

and a medical or research institution) 

connected or associated with an 

institution of higher education, through 

shared ownership or control by the 

same board or federation, operated by 

an institution of higher education, or 

attached to an institution of higher 

education as a member, branch, 

cooperative, or subsidiary. 

(iii) Nonprofit research organization 

or Governmental research organization

means a research organization that is 

either a nonprofit organization or entity 

primarily engaged in basic research and/

or applied research, or a United States 

Government entity whose primary 

mission is the performance or 

promotion of basic research and/or 

applied research. Basic research is 

general research to gain more 

comprehensive knowledge or 

understanding of the subject under 

study, without specific applications in 

mind. Basic research is also research 

that advances scientific knowledge, but 

does not have specific immediate 

commercial objectives although it may 

be in fields of present or commercial 

interest. It may include research and 

investigation in the sciences, social 

sciences, or humanities. Applied 

research is research to gain knowledge 

or understanding to determine the 

means by which a specific, recognized 

need may be met. Applied research 

includes investigations oriented to 

discovering new scientific knowledge 

that has specific commercial objectives 

with respect to products, processes, or 

services. It may include research and 

investigation in the sciences, social 

sciences, or humanities. 

(2) Nonprofit organization or entity, 

for the purpose of this paragraph (e), 

means an organization qualified as a tax 

exempt organization under the Internal 

Revenue Code of 1986, section 501(c)(3), 

(c)(4), or (c)(6) (26 U.S.C. 501(c)(3), 

(c)(4) or (c)(6)), and which has received 

approval as a tax exempt organization 

from the Internal Revenue Service, as it 

relates to research or educational 

purposes. 

(f) Professional athletes. In computing 

the prevailing wage for a professional 

athlete (defined in Section 

212(a)(5)(A)(iii)(II) of the Act) when the 

job opportunity is covered by 

professional sports league rules or 

regulations, the wage set forth in those 

rules or regulations is considered the 

prevailing wage (see Section 212(p)(2) of 

the Act). INA Section 

212(a)(5)(A)(iii)(II), 8 U.S.C. 

1182(a)(5)(A)(iii)(II) (1999), defines 

‘‘professional athlete’’ as an individual 

who is employed as an athlete by—

(1) A team that is a member of an 

association of six or more professional 

sports teams whose total combined 

revenues exceed $10,000,000 per year, if 

the association governs the conduct of 

its members and regulates the contests 

and exhibitions in which its member 

teams regularly engage; or 

(2) Any minor league team that is 

affiliated with such an association. 

(g) Employer-provided wage 

information. (1) If the job opportunity is 

not covered by a CBA, or by a 

professional sports league’s rules or 

regulations, the SWA must consider 

wage information provided by the 

employer in making a prevailing wage 

determination. An employer survey can 

be submitted either initially or after 

SWA issuance of a prevailing wage 

determination derived from the OES 

survey. In the latter situation, the new 

employer survey submission will be 

deemed a new prevailing wage 

determination request. 

(2) In each case where the employer 

submits a survey or other wage data for 

which it seeks acceptance, the employer 

must provide the SWA with enough 

information about the survey 

methodology, including such items as 

sample size and source, sample 

selection procedures, and survey job 

descriptions, to allow the SWA to make 

a determination about the adequacy of 

the data provided and validity of the 

statistical methodology used in 

conducting the survey in accordance 

with guidance issued by the ETA 

national office. 

(3) The survey submitted to the SWA 

must be based upon recently collected 

data: 

(i) A published survey must have 

been published within 24 months of the 

date of submission to the SWA, must be 

the most current edition of the survey, 

and the data upon which the survey is 

based must have been collected within 

24 months of the publication date of the 

survey. 

(ii) A survey conducted by the 

employer must be based on data 

collected within 24 months of the date 

it is submitted to the SWA. 

(4) If the employer-provided survey is 

found not to be acceptable, the SWA 

must inform the employer in writing of 

the reasons the survey was not accepted. 

(5) The employer, after receiving 

notification that the survey it provided 

for the SWA’s consideration is not 

acceptable, may file supplemental 

information as provided in paragraph 

(h) of this section, file a new request for 

a prevailing wage determination, or 

appeal under § 656.41. 

(h) Submittal of supplemental 

information by employer. (1) If the 

employer disagrees with the skill level 

assigned to its job opportunity, or if the 

SWA informs the employer its survey is 

not acceptable, or if there are other 

legitimate bases for such a review, the 

employer may submit supplemental 

information to the SWA. 

(2) The SWA must consider one 

supplemental submission about the 

employer’s survey or the skill level the 

SWA assigned to the job opportunity or 

any other legitimate basis for the 

employer to request such a review. If the 

SWA does not accept the employer’s 

survey after considering the 

supplemental information, or affirms its 

determination concerning the skill level, 

it must inform the employer of the 

reasons for its decision. 

(3) The employer may then apply for 

a new wage determination or appeal 

under § 656.41. 

(i) Wage can not be lower than 

required by any other law. No prevailing 

wage determination for labor 

certification purposes made under this 

section permits an employer to pay a 

wage lower than the highest wage 

required by any applicable Federal, 

state, or local law. 

(j) Fees prohibited. No SWA or SWA 

employee may charge a fee in 

connection with the filing of a request 

for a PWD, responding to such a request, 

or responding to a request for a review 

of a SWA prevailing wage determination 

under § 656.41.

§ 656.41 Certifying Officer review of 

prevailing wage determinations. 

(a) Review of SWA prevailing wage 

determinations. Any employer desiring 

review of a SWA PWD must make a 

request for such review within 30 days 

of the date from when the PWD was 

issued by the SWA. The request for 

review must be sent to the SWA that 

issued the PWD within 30 days of the 

date of the PWD; clearly identify the 

PWD from which review is sought; set 

forth the particular grounds for the 

request; and include all the materials 

pertaining to the PWD submitted to the 

SWA up to the date of the PWD received 

from the SWA. 

(b) Transmission of request to 

processing center. (1) Upon the receipt 

of a request for review, the SWA must 

review the employer’s request and 

accompanying documentation, and add 

any material that may have been 

omitted by the employer, including any 

material sent to the employer by the 

SWA up to the date of the PWD. 

(2) The SWA must send a copy of the 

employer’s appeal, including any 

material added under paragraph (b)(1) of 

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this section, to the appropriate ETA 

application processing center.

(3) The SWA must send a copy of any 

material added by the SWA under 

paragraph (b)(1) of this section to the 

employer. 

(c) Designations. The director(s) of the 

ETA application processing center(s) 

will determine which CO will review 

the employer’s appeal. 

(d) Review on the record. The CO 

reviews the SWA PWD solely on the 

basis upon which the PWD was made 

and, upon the request for review, may: 

(1) Affirm the prevailing wage 

determination issued by the SWA; 

(2) Modify the prevailing wage 

determination; or 

(3) Remand the matter to the SWA for 

further action. 

(e) Request for review by BALCA. Any 

employer desiring review of a CO 

prevailing wage determination must 

make a request for review of the 

determination by the Board of Alien 

Labor Certification Appeals within 30 

days of the date of the decision of the 

CO. 

(1) The request for review, statements, 

briefs, and other submissions of the 

parties and amicus curiae must contain 

only legal arguments and only such 

evidence that was within the record 

upon which the affirmation of the PWD 

by the SWA was based. 

(2) The request for review must be in 

writing and addressed to the CO who 

made the determination. Upon receipt 

of a request for a review, the CO must 

immediately assemble an indexed 

appeal file in reverse chronological 

order, with the index on top followed by 

the most recent document. 

(3) The CO must send the Appeal File 

to the Office of Administrative Law 

Judges, Board of Alien Labor 

Certification Appeals, 800 K Street, 

Suite 400–N, Washington, DC 20001–

8002. 

(4) The BALCA handles the appeals in 

accordance with § 656.26 and § 656.27 

of this part.

Signed in Washington, DC, this 13th day of 

December, 2004. 

Emily Stover DeRocco, 

Assistant Secretary, Employment and 

Training Administration.

Editorial Note: The ETA Form 9089 and 

instructions will not appear in the Code of 

Federal Regulations.

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