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US
Department of Labor Proposes Regulation to Allow
Previously Filed Labor Certification Applications
to be Processed as Reductions in Recruitment
July 26, 2000
The US Department of Labor has proposed a regulation that would
allow employers to request that certain previously filed labor certification
applications be processed as reductions in recruitment. Comments are due by
8/25/00.
The complete proposed rule is reproduced below.
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[Federal Register: July 26, 2000 (Volume 65, Number 144)]
[Proposed Rules]
[Page 46081-46084]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26jy00-68]
[[Page 46081]]
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Part IV
Department of Labor
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Employment and Training Administration
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20 CFR Part 656
Labor Certification Process for the Permanent Employment of Aliens in
the United States; Refiling of Applications; Proposed Rule
[[Page 46082]]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 656
RIN 1205-AB25
Labor Certification Process for the Permanent Employment of
Aliens in the United States; Refiling of Applications
AGENCY: Employment and Training Administration, Labor.
ACTION: Proposed rule; request for comments.
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SUMMARY: The Employment and Training Administration (ETA) of the
Department of Labor (Department or DOL) proposes to amend its
regulations relating to the permanent employment of aliens in the
United States. The proposed amendments would permit employers to
request that any labor certification application for permanent
employment filed on or before July 26, 2000, and which has not been
sent to the regional certifying officer, be processed as a reduction in
recruitment request, provided recruitment has not been conducted
pursuant to the permanent labor certification regulations. ETA
anticipates that the proposed amendment would reduce the backlog of
labor certification applications for permanent employment in State
Employment Security Agencies (SESA). This measure to reduce backlogs
would result in a variety of desirable benefits, a reduction in
processing time for both new applications and those applications
currently in the queue, would facilitate the development and
implementation of a new, more efficient system for processing labor
certification applications for permanent employment in the United
States, and would reduce government resources necessary to process
applications for alien employment certification.
DATES: Interested persons are invited to submit written comments on the
proposed rule on or before August 25, 2000.
ADDRESSES: Submit written comments to the Assistant Secretary for
Employment and Training, U.S. Department of Labor, 200 Constitution
Avenue, NW., Room N-4456, Washington, DC 20210, Attention: James H.
Norris, Chief, Division of Foreign Labor Certifications.
FOR FURTHER INFORMATION CONTACT: Denis M. Gruskin, Senior Specialist,
Division of Foreign Labor Certifications, Employment and Training
Administration, 200 Constitution Avenue, NW., Room N-4456, Washington,
DC 20210. Telephone: (202) 219-5263 (this is not a toll-free number).
SUPPLEMENTARY INFORMATION:
A. Background
Backlogs of applications for permanent alien employment
certification have been a growing problem in ETA regional and SESA
offices. These increasing backlogs have resulted in an increase in the
time it takes to obtain a determination on an application for permanent
employment in the United States.
Recent measures to reduce backlogs in ETA's regional offices have
met with considerable success. Consequently, ETA is now turning its
attention to reducing the number of backlogged cases in SESA's.
Instituting measures to reduce backlogs in SESA's without first
reducing backlogs in regional offices would not have resulted in a
reduction in mean processing time. Implementing measures to reduce
backlogs in SESA's without first reducing backlogs in the regional
offices, would have merely resulted in transferring the backlogged
applications from the SESA's to ETA's regional offices.
B. Statutory Standard and Implementing Regulations
Before the Immigration and Naturalization Service (INS) may approve
petition requests and the Department of State may issue visas and admit
certain immigrant aliens to work permanently in the United States, the
Secretary of Labor must first certify to the Secretary of State and to
the Attorney General that:
(a) There are not sufficient United States workers, who are able,
willing, qualified, and available at the time of the application for a
visa and admission into the United States and at the place where the
alien is to perform the work; and
(b) The employment of the alien will not adversely affect the wages
and working conditions of similarly employed United States workers. [8
U.S.C. 1182(a)(5)(A)].
If the Secretary, through ETA, determines that there are no able,
willing, qualified, and available U.S. workers and that employment of
the alien will not adversely affect the wages and working conditions of
similarly employed U.S. workers, DOL so certifies to the INS and to the
Department of State, by issuing a permanent alien labor certification.
If DOL cannot make one or both of the above findings, the
application for permanent alien employment certification is denied. DOL
may be unable to make the two required findings for one or more
reasons, including, but not limited to:
(a) The employer has not adequately recruited U.S. workers for the
job offered to the alien, or has not followed the proper procedural
steps in 20 CFR part 656.
(b) The employer has not met its burden of proof under section 291
of the Immigration and Nationality Act (INA or Act.) (8 U.S.C. 1361),
that is, the employer has not submitted sufficient evidence of its
attempts to obtain available U.S. workers, and/or the employer has not
submitted sufficient evidence that the wages and working conditions
which the employer is offering will not adversely affect the wages and
working conditions of similarly employed U.S. workers.
C. Department of Labor Regulations
The Department of Labor has promulgated regulations, at 20 CFR part
656, governing the labor certification process described above for the
permanent employment of immigrant aliens in the United States. Part 656
was promulgated pursuant to section 212(a)(14) of the INA (now at
section 212(a)(5)(A)). 8 U.S.C. 1182(a)(5)(A).
The regulations at 20 CFR part 656 set forth the factfinding
process designed to develop information sufficient to support the
granting of a permanent labor certification. These regulations describe
the nationwide system of public employment service offices available to
assist employers in finding available U.S. workers and how the
factfinding process is utilized by DOL as the basis of information for
the certification determination. See also 20 CFR parts 651 through 658,
and the Wagner-Peyser Act (29 U.S.C. Chapter 4B).
Part 656 also sets forth the responsibilities of employers who
desire to employ immigrant aliens permanently in the United States.
Such employers are required to demonstrate that they have attempted to
recruit U.S. workers through advertising, through the Federal-State
Employment Service System, and by other specified means. The purpose is
to assure that there is an adequate test of the availability of U.S.
workers to perform the work, and to ensure that aliens are not employed
under conditions that would adversely affect the wages and working
conditions of similarly employed U.S. workers.
[[Page 46083]]
D. Backlogs
Since Fiscal Year (FY) 1995, backlogs of applications for permanent
alien employment certification in ETA regional offices and SESA's have
increased dramatically. Between October 1994 and October 1998, the
total backlog in both regional and SESA offices increased from 40,000
to 104,000 applications for alien employment certification. Regional
office backlogs alone increased from 10,000 to 30,000 cases over that
period, while backlogs in the SESA offices increased from 30,000 to
74,000 cases. The number of backlogged cases in SESA's on March 31,
1999, stood at about 86,000 applications.
Early in calendar year 1999 ETA instituted a number of measures to
reduce the backlog of applications for permanent alien employment
certification that numbered over 38,000 cases in its regional offices.
The most important of these measures put in place in February 1999,
were:
<bullet> Implementation of a system nationally which allowed
employers to transmit H-1B labor condition applications (LCA)
electronically and to receive a certification decision on their
applications by return fax. Implementation of this system allowed many
of the regional staff that it had been necessary to assign to
processing LCA's in order to ensure compliance with the statutory 7-day
H-1B processing requirement, to be reassigned to processing permanent
cases.
<bullet> Implementation of a special priority backlog reduction
effort by providing $500,000 for overtime and hiring temporary staff.
These additional funds allowed experienced analysts to concentrate on
processing permanent cases.
The efforts to reduce backlogs in regional offices met with
considerable success. As of late October 1999, the number of backlogged
cases in ETA regional offices numbered 14,642. To accomplish this large
reduction in backlogs, regional offices processed over 71,000 cases. In
addition to processing backlogged applications, the regions had to keep
abreast of the 47,800 new cases received from the SESA's between the
beginning of February and late October 1999.
E. Reduction in Recruitment (RIR) Requests
On October 1, 1996, because of the increasing workloads, ETA issued
General Administrative Letter No. 1-97, Measures for Increasing
Efficiency in the Permanent Labor Certification Process (GAL 1-97). The
GAL instituted a number of measures to increase efficiency which were
achievable under current regulations. One of the measures to increase
efficiency was to encourage employers to file requests for reduction in
recruitment under Sec. 656.21(i) of the permanent labor certification
regulations. Requests for reduction in recruitment are given expedited
processing at ETA's regional offices, if they contain no deficiencies.
The reduction in recruitment provision allows certifying officers to
reduce partially or completely the employer's recruitment efforts
through the State Employment Security Agencies, for example, by
decreasing partially or completely the number of days which the job
order and/or ad must be run. The notice requirement at
Sec. 656.20(g)(1)(i) and (5) can be reduced partially, but it cannot be
eliminated, since it is based on a statutory requirement. See
Immigration Act of 1990, Public Law 101-649, sec. 122(b) (Nov. 29
1990).
The reduction in recruitment provision may be utilized by
certifying officers when the labor market has been adequately tested
within 6 months prior to the filing of the application and there is no
expectation that full or partial compliance with the prescribed
recruitment measures will produce qualified and willing applicants.
The emphasis on the use of the reduction in recruitment regulation
by GAL 1-97 in appropriate cases has worked well and has contributed
significantly to ETA being able to manage its increasing case load with
limited staff resources. Backlogs in both the regional offices and
SESA's would undoubtedly be substantially larger if the use of the RIR
provisions in the regulations had not been encouraged by GAL 1-97.
ETA has concluded that backlogs in SESA's could be substantially
reduced if employers are allowed to have applications that were not
originally filed as RIR cases and which meet the appropriate criteria
removed from the SESA's processing queues and processed as reduction in
recruitment cases. Furthermore, reducing or eliminating the backlogs
would facilitate the development and implementation of a new permanent
employment certification system that ETA has been developing.
The proposed amendment to the RIR regulation at 20 CFR 656.21(i)
would allow an employer to file a request to have an application filed
on or before July 26, 2000, which has not been sent to the regional
office, processed as a RIR request under Sec. 656.21(i), provided that
recruitment has not been conducted pursuant to Secs. 656.21(f) and/or
(g). Since the RIR procedure is designed to expedite processing by
permitting employers to substitute recruiting conducted prior to filing
the application for the recruitment required by Sec. 656.21, it would
be incongruous to entertain an RIR request from an employer who had
already engaged in the mandated recruiting. Those applications should
be approved or denied based on that recruitment.
The proposed regulation provides that the option to have a
permanent labor certification application processed as an RIR request
would apply only to cases that were filed on or before July 26, 2000.
ETA's operating experience indicates that without such a limitation
employers may be motivated to file large numbers of cases, many of
which may be inadequately prepared, simply to obtain a filing date \1\
and then convert such cases to reduction in recruitment requests.
Providing sufficient lead time to employers that may file large numbers
of cases that could subsequently be converted to RIR cases would
undermine the purpose of the proposed rule which is to reduce backlogs
of existing cases and to facilitate the orderly implementation of a new
streamlined labor certification system.
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\1\ The filing date is important to employers because, according
to INS regulations, ``[t]he priority date of any petition for
classification under section 203(b) of the Act which is accompanied
by an individual labor certification from the Department of Labor
shall be the date the request for certification was accepted for
processing by any office within the employment service system.'' See
8 CFR 204.5(d).
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Before the issuance of GAL 1-97, cited above, on October 1, 1996,
the RIR provisions at Sec. 656.21(i) were not fully utilized for a
variety of reasons. The issuance of GAL 1-97 instituted a uniform
policy that RIR requests were to be viewed favorably, set forth
operating guidelines that were to be followed by all regional offices,
and clarified ETA policy regarding the priority to be given RIR
requests. Between the issuance of GAL 1-97 in October 1996, and the
publication of this document in the Federal Register employers have had
ample encouragement and opportunity to file RIR requests.
The proposed regulation also provides that for the request to have
a previously filed application processed as an RIR request it must be
accompanied by documentary evidence of good faith recruitment conducted
within the 6 months immediately preceding the date of the request. This
provision will allow expeditious processing of previously filed
applications as RIR requests upon receipt of the employer's request.
[[Page 46084]]
The proposed regulation does not specifically address the ability
of an employer to amend its application at the time the employer makes
a request to have a previously filed application processed as a RIR
request. The Department believes that the current administrative
practices that have been developed to handle requests to amend labor
certifications after filing are sufficient. Interested parties,
however, are invited to submit comments on this issue and the
Department will consider those and any other comments in the
development of the final rule.
Executive Order 12866
The Department has determined that this proposed rule is not an
``economically significant regulatory action'' within the meaning of
Executive Order 12866, in that it will not have an economic effect on
the economy of $100 million or more or adversely affect in a material
way the economy, a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local or
tribal governments or communities.
While it is not economically significant, the Office of Management
and Budget reviewed the proposed rule because of the novel legal and
policy issues raised by this rulemaking.
Regulatory Flexibility Act
The proposed rule would only affect those employers seeking
immigrant workers for permanent employment in the United States. The
Department of Labor has notified the Chief Counsel for Advocacy, Small
Business Administration, and made the certification pursuant to the
Regulatory Flexibility Act at 5 U.S.C. 605(b), that the proposed rule
will not have a significant economic impact on a substantial number of
small entities.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any 1 year, and it will not significantly or
uniquely affect small governments. Therefore, no actions are deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. It will not result
in an annual effect on the economy of $100 million or more; a major
increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
Executive Order 13132
This proposed rule will not have a substantial direct effect on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a summary impact
statement.
Assessment of Federal Regulations and Policies on Families
The proposed regulation does not affect family well-being.
Paperwork Reduction Act
The proposed rule would not modify the existing collection of
information requirements in 20 CFR 656.21.
Catalogue of Federal Domestic Assistance Number
This program is listed in the Catalogue of Federal Domestic
Assistance at Number 17.203, ``Certification for Immigrant Workers.''
List of Subjects in 20 CFR Part 656
Administrative practice and procedure, Aliens, Crewmembers,
Employment, Employment and training, Enforcement, Fraud, Guam,
Immigration, Labor, Longshore work, Unemployment, Wages and working
conditions.
Accordingly, Part 656 of Chapter V of Title 20 of the Code of
Federal Regulations is proposed to be amended as follows:
PART 656--LABOR CERTIFICATION PROCESS FOR PERMANENT EMPLOYMENT OF
ALIENS IN THE UNITED STATES
1. The authority citation for Part 656 is revised to read as
follows:
Authority: 8 U.S.C. 1182(a)(5)(A) and 1182(p); 29 U.S.C. 49 et
seq.; sec.122, Pub. L. 101-649, 109 Stat. 4978.
Sec. 656.21 [Amended]
2. Section 656.21 is amended by adding a new paragraph (i)(6), to
read as follows:
Sec. 656.21 Basic labor certification process.
* * * * *
(i) * * *
(6) Notwithstanding the provisions of paragraph (i)(1)(i) of this
section an employer may file a request with the SESA to have any
application filed on or before July 26, 2000, and which has not been
sent to the regional certifying officer, processed as a reduction in
recruitment request under this paragraph (i), provided that recruitment
has not been conducted pursuant to paragraph (f) and/or (g) of this
section.
Signed at Washington, DC, this 19th day of July, 2000.
Raymond L. Bramucci,
Assistant Secretary of Labor for Employment and Training.
[FR Doc. 00-18865 Filed 7-25-00; 8:45 am]
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