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, SWA’s and the Federal Government.
It can take up to two years or more to complete the process for applications
that are filed under the basic process and do not utilize the more streamlined
reduction in recruitment (RIR) process.
The reduction in recruitment process allows employers that request RIR
processing to conduct recruitment before filing their applications and
these applications are evaluated on the basis of such recruitment.
The redesigned system we envision would require employers to conduct recruitment
before filing their applications. Employers would be required to conduct
both mandatory and alternative recruitment steps. The alternative steps
would be chosen by the employer from a list of additional recruitment
steps in the regulations. The employer would not be required to submit
any documentation with its application, but would be expected to have
assembled supporting documentation specified in the regulations and would
be required to provide it in the event its application is selected for audit.
Employers would be required to submit their applications on forms designed
for automated processing to minimize manual intervention to an ETA application
processing center for automated screening and processing.
After an application has been determined to be acceptable for filing, an
automated system would review it based upon various selection criteria
that would allow applications to be identified for potential audits before
determinations could be made. In addition, some applications would be
randomly selected as a quality control measure for an audit without regard
to the results of the computer analysis. A complete application would
consist of two forms. An Application for Permanent Labor Certification
form (ETA Form 9089) and a Prevailing Wage Determination Request (PWDR)
form (ETA Form 9088). The application form would require the employer
to respond to 56 items. The majority of the items on the application form
would consist of attestations which would require the employer to do no
more than check ‘‘yes’’, ‘‘no’’,
or ‘‘NA’’ (not applicable) as a response. These
attestations and other information required by the application form elicit
information similar to that required by the current labor certification
process. For example, the employer will have to attest to, such items
as: whether the employer provided notice of the application to the bargaining
representative or its employees; whether the alien beneficiary gained
any of the qualifying experience with the employer; whether the alien
is currently employed by the employer; whether a foreign language requirement
is required to perform the job duties; and whether the U.S.
applicants were rejected solely for lawful job related reasons. (The term
‘‘applicant’’ is defined at § 656.3 as an
U.S. worker who is applying for a job opportunity for which an employer
has filed an Application for Permanent Labor Certification (ETA Form 9089).
The term ‘‘U.S. Worker’’ is also defined at §
656.3.) The wage offered on the application form would be required to
be to equal to or greater than the prevailing wage determination entered
by the SWA on the PWDR form described below. Comments are requested on
ETA forms 9088 and 9089 which are published at the end of this NPRM.
The application form, however, would not require the employer to provide
a job description, or detailed job requirements. The job description and
job requirements would be entered on the PWDR form, which the employer
would be required to submit to the SWA for a prevailing wage determination.
The SWA would enter its prevailing wage determination on the form and
return it to the employer with its endorsement. The employer would be
required to submit both forms to an ETA servicing office for processing
and a determination.
The 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 was selected for an audit. The standards used in adjudicating
applications under the new system would be substantially the same as those
used in arriving at a determination in the current system.
The determination would still be based on: whether the employer has met
the requirements of the regulations; whether there are insufficient 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. SWA’s would no longer be the
intake point for submission of applications for permanent alien employment
certification and would not be required to be the source of recruitment
and referral of U.S. workers as they are in the present system. The required
role of SWA’s in the redesigned permanent labor certification process
would be limited to providing prevailing wage determinations (PWD). Employers
would be required to submit a PWDR form to SWA’s to obtain a PWD
before filing their applications with an ETA application processing center.
The SWA’s would, 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 prefiling recruitment, automated processing of applications,
and elimination of the SWA’s’ required role in the recruitment
and referral of U.S. workers would yield a large reduction in the average
time needed to process labor certification applications and would also
eliminate the need to institute special, resource intensive efforts to
reduce backlogs which have been a recurring problem. The proposed labor
certification application and PWDR have been designed to be machine readable
or directly completed in a web-based environment. Initially, depending
upon whether or not a processing fee is mplemented, applications will
be on forms which can be submitted by facsimile transmission or by mail
and will be subject to an initial acceptability check to determine whether
the application can be processed. If a fee for processing the application
is required, all applications will have to be submitted by mail. (However,
as indicated in section IV.E, of the preamble below, the Department cannot
promulgate and implement a fee charging rule until Congress passes the
necessary authorizing legislation.) In the long-term, ETA will be exploring
the possibility of further automating the process so thatapplications
and PWDR’s may be submitted electronically to an application processing
center whether or not a fee is required to be submitted with an application.
After an application, including the PWDR, has been determined to be acceptable
for filing, a computer system will review the application based upon various
selection criteria that will allow more problematic applications to be
identified for audit. Additionally, we anticipate that some applications
will be randomly selected for an audit without regard to the results of
the computer analysis as a quality control measure. If an audit has not
been triggered by the information provided on the application or because
of a random selection, the application will be certified and returned
to the employer. The employer may then submit the certified application
to the Immigration and Naturalization Service (INS) in support of an employment-based
We anticipate that if an application is not selected for an audit, an employer
will have a computer-generated decision within 21 calendar days of the
date the application was initially filed. If an application is selected
for an 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, the application will
be distributed to the appropriate ETA regional office where it will be
reviewed by the regional Certifying Officer.
After an audit has been completed, the proposed rule provides that the
Certifying Officer can certify the application; deny the application;
or order supervised recruitment. If the audit documentation is complete
and consistent with the employer’s statements and attestations contained
in the application, the application will be certified and returned to
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 therefor
will be issued to the employer. If an application is denied, the employer
will be able to request review of the Certifying Officer’s
decision by the Board of Alien Labor Certification Appeals (Board or BALCA).
Additionally, on any application selected for an audit, the regional Certifying
Officer will have the authority to request additional information before
making a final determination or order supervised recruitment for the employer’s
job opportunity in any case where questions arise regarding the adequacy
of the employer’s test of the labor market. The supervised recruitment
that may be required by the regional Certifying Officer, is similar to
the current non-RIR regulatory recruitment scheme under the current basic
process which requires placement of an advertisement in conjunction with
a 30-day job order by the employer. The recruitment, however, will be
supervised by ETA regional offices instead of the SWA’s. At the
completion of the supervised recruitment efforts, the employer will be
required to document in a recruitment report that such efforts were unsuccessful,
including the lawful, jobrelated reasons for not hiring any U.S. workers
who applied for the position.
After a review of the employer’s documentation, the regional Certifying
Officer will either certify or deny the application. In all instances
in which an application is denied, the denialnotification will set forth
the deficiencies upon which the denial is based. The employer would be
able to seek administrative-judicial review of a denial.
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