[Federal Register Volume 69, Number 247 (Monday, December 27, 2004)]
[Rules and Regulations]
[Pages 77326-77421]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27653]



[[Page 77325]]

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Part II





Department of Labor





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Employment and Training Administration



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20 CFR Parts 655 and 656



Labor Certification for the Permanent Employment of Aliens in the 
United States; Implementation of New System; Final Rule

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

[[Page 77326]]


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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.

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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 `` <a href="/cdn-cgi/l/email-protection#dd8d988f90f3999b919e9db9b2b1f3bab2ab"><span class="__cf_email__" data-cfemail="92c2d7c0dfbcd6d4ded1d2f6fdfebcf5fde4">[email protected]</span></a>. 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 resumes 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 job-related 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

[[Page 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 
customer-friendly 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.

[[Page 77328]]

    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 job-related 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 administrative-judicial 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 Non-Meritorious Applications

    Many commenters expressed concerns about the potential for fraud, 
program abuse, and the filing of non-meritorious 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 non-meritorious 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.

[[Page 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-the-shelf 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 non-meritorious 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 good-faith 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

[[Page 77330]]

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:
    <bullet> Give COs discretion to forward any labor certification 
application selected for audit to a SWA for confirmation;
    <bullet> 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
    <bullet> 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 resumes 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

[[Page 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 resume 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 Sec.  
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 Sec.  
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 Sec.  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

[[Page 77332]]

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, Sec.  
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 Sec.  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 Sec.  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 
``Fax-back'' 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

[[Page 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 
toll-free 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> Change Wage Offer Information (see the ETA Form 9089, 
section G) to read: Offered Wage Range, From: ---- To: ----. 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.
    <bullet> 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 Sec.  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

[[Page 77334]]

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 Sec.  656.5(a)(2) to the 
procedures regarding documentary evidence to support a Schedule A 
certification at Sec.  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 Sec.  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 Sec.  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 Sec.  
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 
Sec.  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.

[[Page 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 Sec.  
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 pre-
IMMACT 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 self-sponsor 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 
Sec.  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 Sec.  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 Sec.  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

[[Page 77336]]

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 SWA-issued 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 Sec.  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 Sec.  656.5, Schedule A from Sec.  656.19 to Sec.  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 Sec.  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 Sec.  
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 Sec.  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:
    <bullet> Allowing representation by agents was contrary to statutes 
in all 50 states prohibiting the unauthorized practice of law;
    <bullet> 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
    <bullet> 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

[[Page 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 in-house 
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 Sec.  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 in-house 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 Sec.  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 Sec.  
656.10(d)(3) in the proposed and final rule concerning the furnishing 
of documentary evidence bearing on the application, Sec.  656.10(d)(3) 
was drafted to implement the statutory requirement

[[Page 77338]]

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 co-workers).'' It should also be noted the provision 
at Sec.  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 Sec.  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 Sec.  
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 (Sec.  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 Sec. Sec.  
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 Sec.  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 Sec.  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 Sec.  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

[[Page 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 Sec.  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 
Sec.  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 Sec.  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.

[[Page 77340]]

    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 Sec.  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 
fee-charging 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, Sec.  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

[[Page 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 pre-filing 
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 date-stamped 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 Sec.  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

[[Page 77342]]

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 Sec.  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 Sec.  656.21(f)(1) of the current regulation.
    Similarly, the final rule has been revised at Sec.  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 Sec.  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 Sec.  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 re-
recruiting 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 Sec.  
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

[[Page 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 Sec.  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 micro-managing the recruitment process. Other 
commenters did not specifically mention RIR processing, but stated the 
proposed requirements were not real-world.
    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 Sec.  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

[[Page 77344]]

$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 job-search 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.

[[Page 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 
Sec.  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 r[eacute]sum[eacute] 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 r[eacute]sum[eacute] 
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 Sec.  
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 Sec.  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

[[Page 77346]]

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 Sec.  656.17(e)(1). For all other occupations employers 
can simply recruit under the requirements for nonprofessional 
occupations at Sec.  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 Sec.  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

[[Page 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:
    <bullet> 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
    <bullet> 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

[[Page 77348]]

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 resumes to a blind advertisement, as they can 
not tell who will receive their resume. 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

[[Page 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 resumes 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 resumes 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 Sec.  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 resumes 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 r[eacute]sum[eacute] 
received and need not track r[eacute]sum[eacute]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 r[eacute]sum[eacute]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 r[eacute]sum[eacute] 
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' 
r[eacute]sum[eacute]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 
r[eacute]sum[eacute]s from all around the country. The commenter 
recommended the rule be amended to require applicants to mail their 
r[eacute]sum[eacute]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 job-identification 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

[[Page 77350]]

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 r[eacute]sum[eacute]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 job-related 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 Sec.  
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 resumes 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 Sec.  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 
Sec.  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

[[Page 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 long-held 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 Sec.  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 long-held 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

[[Page 77352]]

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 Sec.  
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 Sec.  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 resumes 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,

[[Page 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 law-abiding 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 Sec.  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 Sec.  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 employer-applicant. 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 Sec.  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 long-term 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

[[Page 77354]]

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 Sec.  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 Sec.  
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 Sec.  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 
employer-applicant 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 Sec.  656.17(j) in the NPRM (Sec.  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 Sec.  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 employer-applicant's 
layoffs.
    Under this final rule, the employer-applicant 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 employer-
applicants with respect to workers laid off by other employers in the 
area of intended employment.
    It should be noted that under Sec.  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

[[Page 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 laid-off 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 employer-applicant 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 Sec.  656.17(j)(2)'s definition of 
``related occupation'' was inconsistent with Sec.  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 Sec.  656.17(k), to be inconsistent with 
Sec.  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 employer-applicant. 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 Sec.  656.17(h) and (i) of this final 
rule (Sec.  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 Sec. Sec.  
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 
Sec.  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

[[Page 77356]]

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 Sec.  656.17(l) (Sec.  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 Sec.  
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

[[Page 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 Sec.  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 Sec.  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 Sec.  656.18 to include 
``high-level and research positions'' within private companies.
    We cannot eliminate the special procedures for academia or expand 
Sec.  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 Sec.  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 Sec.  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

[[Page 77358]]

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 
Sec.  656.19(a) to clarify, consistent with the general instructions at 
Sec.  656.10(a)(1), that applications for live-in household domestic 
service workers must be filed under the basic process at Sec.  656.17. 
Second, we have changed the language in Sec.  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 Sec.  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 Sec.  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 user-friendly than the current process. The regulations 
indicate what documentation employers are required

[[Page 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

[[Page 77360]]

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 Sec.  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 
Sec.  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 Sec.  
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 Sec. Sec.  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 Sec.  
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 (Sec.  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

[[Page 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 Sec.  656.21, post-filing 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 Sec.  656.17(k) 
(Sec.  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 Sec. Sec.  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 DOL-supervised 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 (Sec.  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 post-filing supervised recruitment 
will be needlessly repetitive is misplaced. Post-filing 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

[[Page 77362]]

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 DOL-supervised 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 Sec.  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 Sec.  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 Sec.  656.21(a) or Sec.  
656.24(e). Accordingly, Sec.  656.24(f) of this final rule has been 
revised to provide that the employer may be required to conduct 
supervised recruitment pursuant to Sec.  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 Sec.  656.27 to conform to Sec.  
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 Sec.  656.24, a 
revocation of certification under Sec.  656.32, or an affirmation of a 
prevailing wage determination issued by the SWA under Sec.  656.41.

[[Page 77363]]

2. Comments on Proposed Rule
    We received six comments on Sec. Sec.  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.

[[Page 77364]]

    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 Sec.  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 Sec.  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

[[Page 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 employer-provided 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 Sec.  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

[[Page 77366]]

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 bargaining-
derived 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

[[Page 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 employer-provided 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

[[Page 77368]]

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 employer-provided survey meets the 
criteria outlined in Sec.  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 employer-provided 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 Sec.  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 employer-provided 
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

[[Page 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 CMSA-based 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 Sec.  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:
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> The proposal is ambiguous as to whether a fixed time 
requirement for paying higher level wages would be imposed.
    <bullet> 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.

[[Page 77370]]

    <bullet> 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., post-doctoral research fellow, 
medical resident, college instructor, marketing manager.
    <bullet> 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).
    <bullet> 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 Sec.  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 Sec.  
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 Sec.  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 employer-provided 
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.

[[Page 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 Sec.  
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 
Sec.  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 
Sec.  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 Sec.  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

[[Page 77372]]

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 Sec.  
656.40(b)(3). The commenter also stated that in Sec.  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 Sec.  656.40(b)(3) in accordance 
with the commenter's suggestion. With respect to the concern with the 
phrase ``other wage data'' in Sec.  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 Sec. Sec.  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 Sec.  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 Sec.  
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 Sec.  
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 Sec.  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.

[[Page 77373]]

    We have also amended Sec.  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 employer-provided 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 Sec.  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 Sec.  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,

[[Page 77374]]

``(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

[[Page 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 foreign-based 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

[[Page 77376]]

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 x 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.

BILLING CODE 4510-30-P

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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

0
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

0
2. Section 655.731 is amended by:
0
(a) Revising paragraph (a)(2);
0
(b) Redesignating paragraphs (b)(3)(iii)(B)(2) and (3) as 
(b)(3)(iii)(B)(3) and (4), respectively;
0
(c) Adding new paragraph (b)(3)(iii)(B)(2);
0
(d) Redesignating paragraphs (b)(3)(iii)(C)(2) and (3) as paragraphs 
(b)(3)(iii)(C)(3) and (4), respectively;
0
(e) Adding new paragraph (b)(3)(iii)(C)(2);
0
(f) Revising paragraph (d)(1);
0
(g) Revising paragraph (d)(2) introductory text;
0
(h) Revising paragraph (d)(2)(i); and
0
(i) Removing paragraph (d)(4).


Sec.  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

[[Page 77385]]

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 
employer-provided 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 Sec.  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 Sec.  656.41 of this chapter. Employers which 
challenge a SESA prevailing wage determination under Sec.  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 
Sec.  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

[[Page 77386]]

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 (Sec.  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 wage-payment 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 Sec.  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 Sec.  
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 Sec.  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

0
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.

[[Page 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


Sec.  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.


Sec.  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.


Sec.  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

[[Page 77388]]

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 Sec.  
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;

[[Page 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


Sec.  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 Sec.  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


Sec.  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 Sec.  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 Sec.  656.17 or Sec.  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 Sec.  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 Sec.  656.16 or Sec.  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

[[Page 77390]]

pursuant to Sec.  656.40 and Sec.  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 full-time, permanent employment for 
an employer other than the alien.
    (d) Notice. (1) In applications filed under Sec. Sec.  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 Sec.  656.17, the notice must 
contain the information required for advertisements by Sec.  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 Sec.  656.18, the notice must include the 
information required for advertisements by Sec.  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 
Sec.  656.15, or the procedures for sheepherders at Sec.  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 Sec.  656.17 or an application involving a 
college and university teacher selected in a competitive recruitment 
and selection process under Sec.  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 Sec.  656.15 or a sheepherder 
application filed under Sec.  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 Sec.  
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.


Sec.  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

[[Page 77391]]

determination in accordance with Sec.  656.40 and Sec.  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 Sec.  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 (Sec.  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 Sec.  656.15 and not 
under Sec.  656.17.
    (2) An employer seeking a Schedule A labor certification for an 
alien to be employed as a professional nurse (Sec.  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 Sec.  656.15(c) and not under Sec.  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 Sec.  656.10 
and of Schedule A (Sec.  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 Sec.  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 Sec.  
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 Sec.  
656.17. Labor certifications for professional nurses and for physical 
therapists shall not be considered under Sec.  656.17.


Sec.  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,

[[Page 77392]]

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 
Sec. Sec.  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 Sec.  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 Sec.  656.17.


Sec.  656.17  Basic labor certification process.

    (a) Filing applications. (1) Except as otherwise provided by 
Sec. Sec.  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 Sec.  
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 Sec.  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 Sec.  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 (Sec.  656.18), 
Schedule A occupations (Sec. Sec.  656.5 and 656.15), and sheepherders 
(Sec.  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

[[Page 77393]]

college or university teachers selected in a competitive selection and 
recruitment process as provided in Sec.  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

[[Page 77394]]

    (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 
Sec.  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 Sec.  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

[[Page 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.


Sec.  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 Sec.  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 Sec.  656.17. An employer that files for certification of 
employment of college and university teachers under Sec.  656.17 or 
this section must be able to document, if requested by the Certifying 
Officer, in accordance with Sec.  656.24(a)(2)(ii), the alien was found 
to be more qualified than each U.S. worker who applied for the job 
opportunity.


Sec.  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 Sec.  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 non-work 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

[[Page 77396]]

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.


Sec.  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 Sec.  
656.26 is not available.
    (b) A substantial failure by the employer to provide required 
documentation will result in that application being denied Sec.  656.24 
under and may result in a determination by the Certifying Officer 
pursuant to Sec.  656.24 to require the employer to conduct supervised 
recruitment under Sec.  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 Sec.  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 
Sec.  656.21.


Sec.  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 Sec.  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 Sec.  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.

[[Page 77397]]

Sec.  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 (Sec.  656.5) or for 
employment as a sheepherder under Sec.  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 Sec.  656.26 (a) and 
(b);
    (3) Advise that failure to request review within 30 days of the 
date of the determination, as specified in Sec.  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 Sec.  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 Sec.  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 
Sec.  656.26(a).


Sec.  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 Sec.  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.


Sec.  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

[[Page 77398]]

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 Sec.  656.24, 
a revocation of a certification under Sec.  656.32, or an affirmation 
of a prevailing wage determination under Sec.  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 Sec.  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.


Sec.  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 
date-stamped 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 
Sec.  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.


Sec.  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 Sec.  656.30(d), a court, the DHS or the Department of State 
determines there was fraud or willful misrepresentation involving a 
labor certification

[[Page 77399]]

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.


Sec.  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 
Sec.  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 Sec.  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


Sec.  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 Sec.  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 
Sec. Sec.  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.

[[Page 77400]]

    (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 
Sec.  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 Sec.  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 Sec.  656.41.


Sec.  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

[[Page 77401]]

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 Sec.  656.26 
and Sec.  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.

BILLING CODE 4510-30-P

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[FR Doc. 04-27653 Filed 12-23-04; 8:45 am]
BILLING CODE 4510-30-C


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