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Monday,

December 27, 2004

Part II

Department of LaborEmployment and Training Administration

20 CFR Parts 655 and 656

Labor Certification for the PermanentEmployment of Aliens in the UnitedStates; Implementation of New System;Final Rule

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

DEPARTMENT OF LABOR

Employment and TrainingAdministration

20 CFR Parts 655 and 656

RIN 1205AA66

Labor Certification for the Permanent

Employment of Aliens in the UnitedStates; Implementation of New System

AGENCY: Employment and TrainingAdministration, Labor.

ACTION: Final rule.

SUMMARY: The Department of Labor(DOL) is amending its regulationsgoverning the filing and processing oflabor certification applications for thepermanent employment of aliens in theUnited States to implement a newsystem for filing and processing suchapplications. The new system requires

employers to conduct recruitmentbefore filing their applications. StateWorkforce Agencies (SWAs) willprovide prevailing wage determinationsto employers, but will no longer receiveor process applications as they do underthe current system. Employers will berequired to place a job order with theSWA, but the job order will beprocessed the same as any other joborder. Employers will have the option offiling applications electronically, usingweb-based forms and instructions, or bymail.

DATES: Effective Date: This final rule iseffective on March 28, 2005, and appliesto labor certification applications for thepermanent employment of aliens filedon or after that date.

FOR FURTHER INFORMATION CONTACT:PERM Help Desk, Division of ForeignLabor Certification, Employment andTraining Administration, 200Constitution Avenue, NW., Room C4312, Washington, DC 20210.Telephone (202) 6933010 (this is not atoll free number). Questions may be sentvia e-mail to the following address [email protected] encouragequestions to be submitted by e-mail,

because the Division of Foreign LaborCertification intends to post responsesto frequently asked questions on its Website (http://www.ows.doleta.gov/foreign/) and e-mail submission of questionswill facilitate thorough considerationand response to questions.

SUPPLEMENTARY INFORMATION

I. Introduction

On May 6, 2002, the Departmentpublished in the Federal Register aNotice of Proposed Rulemaking (NPRM)to amend its regulations for the

certification of permanent employmentof immigrant labor in the United States.The NPRM also proposed amending theregulations governing employer wageobligations under the H1B program. 67FR 30466 (May 6, 2002). Commentswere invited through July 5, 2002.

II. Statutory Standard

Before the Department of HomelandSecurity (DHS) may approve petitionrequests and the Department of State(DOS) may issue visas and admit certainimmigrant aliens to work permanentlyin the United States, the Secretary ofLabor must certify to the Secretary ofState and to the Secretary of HomelandSecurity:

(a) There are not sufficient UnitedStates workers who are able, willing,qualified, and available at the time ofthe application for a visa and admissioninto the United States and at the placewhere the alien is to perform the work;

and(b) The employment of the alien willnot adversely affect the wages andworking conditions of similarlyemployed United States workers. 8U.S.C. 1182(a)(5)(A).

If the Secretary of Labor, through theEmployment and TrainingAdministration (ETA), determines thereare no able, willing, qualified, andavailable U.S. workers and employmentof the alien will not adversely affect thewages and working conditions ofsimilarly employed U.S. workers, DOLso certifies to the Department ofHomeland Security and to the

Department of State by issuing apermanent alien labor certification.

If DOL can not make both of the abovefindings, the application for permanentalien employment certification isdenied.

III. Current Department of LaborRegulations

DOL has promulgated regulations, at20 CFR part 656, governing the laborcertification process for the permanentemployment of immigrant aliens in theUnited States. Part 656 was promulgatedunder 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 responsibilitiesof employers who desire to employimmigrant aliens permanently in theUnited States. Part 656 was recentlyamended through an Interim Final Ruleeffective on August 20, 2004, whichadded measures to address a backlog inpermanent labor certificationapplications waiting processing. 69 FR43716 (July 21, 2004). When this finalrule refers to the current regulation, it

refers to the regulation in 20 CFR part656 as published in April 2004 andamended by 69 FR 43716.

The current process for obtaining alabor certification requires employers tofile a permanent labor certificationapplication with the SWA serving thearea of intended employment and, afterfiling, to actively recruit U.S. workers in

good faith for a period of at least 30 daysfor the job openings for which aliens aresought.

Job applicants are either referreddirectly to the employer or theirresumes are sent to the employer. Theemployer has 45 days to report to eitherthe SWA or an ETA backlog processingcenter or regional office the lawful job-related reasons for not hiring anyreferred qualified U.S. worker. If theemployer hires a U.S. worker for the jobopening, the process stops at that point,unless the employer has more than oneopening, in which case the applicationmay continue to be processed. If,however, the employer believes able,willing, and qualified U.S. workers arenot available to take the job, theapplication, together with thedocumentation of the recruitmentresults and prevailing wage information,is sent to either an ETA backlogprocessing center or ETA regional office.There, it is reviewed and adetermination made as to whether toissue the labor certification based uponthe employers compliance withapplicable labor laws and programregulations. If we determine there are noable, willing, qualified, and available

U.S. workers, and the employment ofthe alien will not adversely affect thewages and working conditions ofsimilarly employed U.S. workers, we socertify to the DHS and the DOS byissuing a permanent labor certification.See 20 CFR part 656 (April 2004) asamended by 69 FR 43716 (July 21,2004); see also section 212(a)(5)(A) ofthe INA, as amended.

IV. Overview of the Regulation

This final rule deletes the currentlanguage of 20 CFR part 656 andreplaces the part in its entirety with new

regulatory text, effective on March 28,2005. This new regulation will apply toall applications filed on or after theeffective date of this final rule.Applications filed before this ruleseffective date will continue to beprocessed and governed by the currentregulation, except to the extent anemployer seeks to withdraw an existingapplication and refile it in accordancewith the terms of this final rule.

On December 8, 2004, the Presidentsigned into law the ConsolidatedAppropriations Act, 2005. This

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Many commenters were concernedabout the potential for fraud,misrepresentation, and non-meritoriousapplications in an attestation-basedsystem. Some, but not all, of themeasures we have taken to minimizethese problems, include: a review ofapplications, upon receipt, to verify theexistence of the employer and to verify

the employer has employees on itspayroll, and the use of auditingtechniques that can be adjusted asnecessary to maintain program integrity.The concerns about fraud and themeasures we will implement to addresssuch concerns are discussed below ingreater detail.

SWAs will no longer be the intakepoint for receipt of applications forpermanent alien employmentcertification and will not be required to

be the source of recruitment and referralof U.S. workers as they are in thecurrent system. The required role of

SWAs in the redesigned permanentlabor certification process will belimited to providing prevailing wagedeterminations (PWD). Employers will

be required to obtain a PWD from theSWA before filing their applicationswith DOL. The SWAs will, as they dounder the current process, evaluate theparticulars of the employers job offer,such as the job duties and requirementsfor the position and the geographic areain which the job is located, to arrive ata PWD.

The combination of pre-filingrecruitment, providing employers withthe option to complete applications in a

web-based environment, automatedprocessing of applications includingthose submitted by mail, andelimination of the SWAs required rolein the recruitment process will yield alarge reduction in the average timeneeded to process labor certificationapplications. The redesigned systemshould also eliminate the need toinstitute special resource-intensiveefforts to reduce backlogs, which have

been a recurring problem.After ETAs initial review of an

application has determined that it isacceptable for processing, a computer

system will review the applicationbased upon various selection criteriathat will allow problematic applicationsto be identified for audit. Additionally,as a quality control measure, someapplications will be randomly selectedfor audit without regard to the results ofthe computer analysis. DOL hasincorporated identifiers into theprocessing system, which are used toselect cases for audit based uponprogram requirements. In someinstances, DOL will be confirmingspecific information with employers.

If an application has not been selectedfor audit, and satisfies all other reviews,the application will be certified andreturned to the employer. The employermust immediately sign the applicationand then submit the certifiedapplication to DHS in support of anemployment-based I140 petition. Weanticipate an electronically filed

application not selected for audit willhave a computer-generated decisionwithin 45 to 60 days of the date theapplication was initially filed.

If an application is selected for audit,the employer will be notified andrequired to submit, in a timely manner,documentation specified in theregulations to verify the informationstated in or attested to on theapplication. Upon timely receipt of anemployers audit documentation, it will

be reviewed by ETA personnel. If theemployer does not submit a timelyresponse to the audit letter, the

application will be denied. If the auditdocumentation is complete andconsistent with the employersstatements and attestations contained inthe application, and not deficient in anymaterial respect, the application will becertified the employer will be notified.If the audit documentation isincomplete, is inconsistent with theemployers statements and/orattestations contained in theapplication, or if the application isotherwise deficient in some materialrespect, the application will be deniedand a notification of denial with the

reasons therefore will be issued to theemployer. However, on any application,the CO will have the authority torequest additional information beforemaking a final determination.

The CO may also order supervisedrecruitment for the employers jobopportunity, such as where questionsarise regarding the adequacy of theemployers test of the labor market. Thesupervised recruitment that may berequired is similar to the currentregulations for recruitment under basicprocessing, which requires placement ofadvertisements in conjunction with a

30-day job order by the employer. Therecruitment, however, will besupervised by ETA COs instead of theSWAs. At the completion of thesupervised recruitment effort, theemployer will be required to documentin a recruitment report the outcome ofsuch 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 employersdocumentation, the CO will eithercertify or deny the application.

In all instances in which anapplication is denied, the notificationwill set forth the deficiencies uponwhich the denial is based. The employerwill be able to seek administrative-judicial review of a denial by the Boardof Alien Labor Certification Appeals(BALCA).

Excepted Occupations in Team SportsThe preamble to the NPRM made no

mention of the special procedures usedin processing applications on behalf ofcertain aliens to be employed inprofessional team sports. Those specialprocedures have been in place for over25 years and it was not our intent tomodify those procedures as a result ofthis rulemaking. Employers filingapplications on behalf of aliens to beemployed in professional team sportswill continue to use the existing specialprocedures and will continue to filetheir applications using the Application

for Alien Employment Certification(ETA 750). ETA intends to issue adirective detailing the procedures to befollowed in filing applications on behalfof aliens to be employed in professionalteam sports.

V. Discussion of Comments on ProposedRule

We received a total of 195 commentsfrom attorneys, educational institutions,individuals, businesses and SWAs. Mostof the commenters were critical of oneor more of the changes, and suggestedalternatives and improvements. Somecommenters suggested abandonment of

the proposed system entirely.

A. Fraud, Program Abuse, and Non-Meritorious Applications

Many commenters expressedconcerns about the potential for fraud,program abuse, and the filing of non-meritorious applications in anattestation-based system. Somecommenters suggested a two-tier systemfor processing applications to addressan expected increase in fraudulent ornon-meritorious applications.

1. Concerns About Fraud, ProgramAbuse, and Non-Meritorious

ApplicationsNumerous commenters believed the

proposed system would be moresusceptible to fraud and non-meritorious applications than thecurrent system. The Federation forAmerican Immigration Reform (FAIR)was of the opinion the review processin the proposed rule would not meet thelegal standard in INA section212(a)(5)(A). A couple of commentersemphasized the need to provide formeaningful enforcement.



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

A SWA noted its applicationcancellation and withdrawal rate of 15percent, and stated the incidence offraud and abuse of the current systemsuggests a need for tighter controls,rather than a process that relies onemployer self-attestations. AnotherSWA expressed concern that manyinstances of fraud would not be

apparent to the CO, who would berelatively unfamiliar with the situationin individual states.

A DOL employee expressed concernabout the increasing number ofpermanent applications not supported

by an actual job location or position, orfor which there is no bona fideemployer signature. The commenteralso believed the pre-filing recruitmentwould increase opportunities foremployers to avoid hiring qualified U.S.workers.

Several commenters expressedconcern about the lack of hands-onreview. These commenters included theAmerican Council of InternationalPersonnel (ACIP), the AmericanFederation of Labor and Congress ofIndustrial Organizations (AFLCIO),FAIR, and various SWAs. ACIP believedthe proposed rules audit andenforcement procedures would not actas effective deterrents to fraud andmisrepresentation. The AFLCIOconsidered a thorough manual review oflabor certification applications to be, attimes, the sole protection of Americanworkers. One commenter suggested DOLimpose penalties similar to those usedin the H1B program, such as civil

money penalties and debarment fromthe labor certification program, foremployers who file fraudulentapplications.

We believe commenters exaggeratethe current systems ability to identifyfraud and underestimate the newsystems ability to deter it. We agreewith the commenters that fraud is aserious problem. As a result of ourprogram experience, we envision areview of applications, upon receipt, tocheck among other things, the bonafides of the employer. Additionally, weintend to aggressively pursue means by

which to identify those applications thatmay be fraudulently filed.Our initial review will verify whether

the employer-applicant is a bona fidebusiness entity and has employees onits payroll. For example, the employerstax identification number could becrosschecked with available off-the-shelf software used by credit-reportingagencies; we may also use off-the-shelfcommercial products such as theAmerican Business Directory or similarcompendiums of employers in the U.S.We also intend to conduct checks to

ensure the employer is aware that theapplication was filed on its behalf.Finally, we intend to explore means ofcoordination with the SWAs, whichretain responsibility for makingprevailing wage determinations, inorder to avail ourselves of stateexpertise regarding the local employercommunity and the local labor market.

Regarding the imposition of civilmoney penalties and other penalties, weare not imposing such penalties in thisfinal rule. We have concluded that

before making such fundamentalchanges in the program we shouldpublish proposed penalties for noticeand comment in another NPRM.

We plan to minimize the impact ofnon-meritorious applications byadjusting the audit mechanism in thenew system as needed. We have theauthority under the regulations toincrease the number of random audits orchange the criteria for targeted audits.As we gain program experience, we willadjust the audit mechanism as necessaryto maintain program integrity. We alsonote that under section 656.21(a) the COhas the authority to order supervisedrecruitment when he or she determinesit to be appropriate.

2. Proposals for a Two-Tier System

Several commenters believed theautomated processing under the newsystem would lead to a flood of non-meritorious applications that wouldclog the system. ACIP, for example,worried a large increase in fraudulentapplications could lead to long backlogs

and possibly an oversubscription of visanumbers. To address the potential floodof non-meritorious applications, ACIP,the American Immigration LawyersAssociation (AILA), and othersproposed a two-track system forprocessing applications. Manyproponents of a two-track systemobserved by devoting fewer resources toreadily approvable applications, DOLcould devote more resources to moreproblematic cases.

The proposals for a two-track systemvaried, but all envisioned a category ofemployers or jobs that would qualify for

special treatment. Three universitiesproposed creating a class ofregisteredor established users, whoseapplications would be exempt fromrandom audit but who would have tofile annual reports with DOL. Two ofthese commenters explained howestablished users could be identified:Employers could submit an applicationform to DOL, which could review theemployers history of labor certificationfilings. The two commenters pointed tothe blanket L program, run by DHS, andthe J1 program, run by the Department

of State, as examples of how such aprogram could work. A third universitysuggested alternatives to the randomaudit of what it referred to as theautomated electronic labor certificationrequest method. One alternative was toimplement an Established UsersProgram whereby university, non-profitresearch, and government institutions

could be trained and certified in thesubmission of electronic laborcertification requests. Anotheralternative was to require theseinstitutions to submit an annual reportto DOL based on pre-determinedspecifications.

ACIP also referenced the blanket Land J visas and proposed thatattestation-based filing be reserved fortwo categories of applications thatwould qualify for a pre-certificationtrack. One category would focus on theemployer and the employers trackrecord with DOL; this would include

employers who showed they were good-faith users of the system by meetingcertain specified criteria. The othercategory would focus on the nature ofthe occupation and shortages in theeconomy; this would includeoccupations listed on an updatedSchedule A. Applications in either ofthese two categories would have nospecific recruitment requirements. Allother applications would be processedon a standard track; theseapplications would have requirementssimilar to, but less than, the currentrequirements for Reduction inRecruitment (RIR) processing.

Two high-tech companies supportedACIPs call for a pre-certificationprocedure for established users. Onealso recommended only publicly tradedcompanies be allowed to use anattestation-based system because thesecompanies would be far less likely tofile fraudulent applications.

Another commenter favored a two-tiersystem that categorized applications

based on their job requirements. Tier 1would be reserved for applications thatcontained no special skills, noexperience exceeding the specificvocational preparation (SVP) level for

the position, etc. Tier 1 applicationswould be filed according to theprocedures outlined in the proposedrule. All other applications would fallinto Tier 2, and would be filedaccording to the procedures for basicprocessing under current regulations.

AILA recommended integrating anRIR option into the new system, toaccommodate employers that conductongoing recruitment for multipleopenings, and that might fail to satisfythe recruitment requirements outlinedin the proposed rule. To do this, DOL



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would need to set standards in threeareas: RIR eligibility, recruitmentrequirements, and reporting recruitmentresults. AILA suggested recruitment berequired over only a 2 or 3 monthperiod.

AILA also proposed expandingSchedule A to include a special groupfor labor shortages by geographic area,

to respond to acute labor shortages in atimely manner. AILA was of the opinionthat substantial data on job openings inparticular labor market areas could beextracted from the attestation-basedapplications, and this data could beused to determine when and wherelabor shortages occur or disappear.

The single-track, attestation-basedsystem outlined in the proposed rulewas designed to ensure the mostexpeditious processing of cases, usingthe resources available. We do not

believe a two-track system would resultin significant, if any, savings of time andresources. Proponents of a two-tracksystem provide no statistical evidence ofpotential savings gained by establishinga pre-certification track. Any savingsmay be offset by the costs of establishingand administering a two-track system.They may also be offset by an increasein the amount of resources needed toprocess the second track of cases.

Most of the proposals for a two-tracksystem envision fewer, if any,recruitment requirements for onecategory of employers or applications.Under ACIPs proposal, all applicationswould have fewer recruitmentrequirements than they would have

under the proposed regulations. Werewe to adopt any one of these proposals,the Secretary of Labor would be unableto carry out the statutory obligation tocertify that no U.S. qualified workers areavailable. For example, under anestablished users program, employerscould qualify on the basis of theirhistory of filings. However, anemployers past practice has no bearingon whether qualified U.S. workers areavailable for the current job opening.Additionally, economic conditions maychange radically over time, whichwould justify a different approach to

assess whether qualified U.S. workerswere available. Further, because theproposed system is new and containsnew recruitment requirements, at leastfor the first few years there would be noappropriate past practice to review.Comparisons to the L and J programs arealso inappropriate. Both of theseprograms involve temporary visas, andneither depends upon the unavailabilityof U.S. workers.

Finally, all of the suggestions for atwo-track system do more than modifythe proposed rule; they envision a

different approach to case processingthan the approach outlined in theproposed rule. Some of the proposals fora two-track system and EstablishedUsers program are fairly detailed; othersare less clear. None of the proposalscould be adopted as described in thecomments. We do not believe thearguments made in favor of a two-track

system are sufficiently compelling tojustify formulating a new proposed rule.

Some of the proposals for a two-tracksystem envision aggressive managementofSchedule A, to reflect more currentshortages in the labor market. We

believe it would be inappropriate tomake changes to Schedule A in thisfinal rule. However, it may beproductive to consider whether wecould create a more flexible Schedule Ain the future. See our discussion ofSchedule A in Section D below.

B. Role of the State Workforce Agencies

Under the proposed system, SWAswill no longer receive or reviewapplications. They will, however,continue to provide PWDs.

1. Loss of State Workforce AgencyExpertise

Many commenters expressedconcerns about the loss of SWAexpertise on local labor markets as aresult of centralized processing.

A few commenters felt the revisedprocess would not be more efficient

because the additional workloadassociated with cases pulled for auditwould exceed the resources available to

the COs and would result in backlogs.Another commenter felt the shift inworkload from the SWAs to the COswould place unnecessary burdens onCOs who may not have extensiveknowledge of local labor markets orexperience in navigating the variousstate employment service systems.

Another commenter contended theproposed rule failed to consider thatmany employers, unfamiliar with thelabor certification process and withoutthe assistance of attorneys orrepresentatives, routinely file incorrector incomplete applications. This

commenter envisioned that without thebenefit of the SWAs expertise, theincrease in correspondence betweenemployers and regional offices wouldlead to backlogs similar to those underthe current system.

FAIR recommended the followingrevisions: Give COs discretion to forward any

labor certification application selectedfor audit to a SWA for confirmation; Authorize SWAs, based on a

reasonable-basis complaint from thepublic or on their own information and

belief, to require an audit of anyapplication within the SWAsjurisdiction; and Require notices posted pursuant to

20 CFR 656.10(d) to include the name,address, and contact information for thelocal SWA where a complaint may befiled.

The AFLCIO viewed limiting the

role of the SWA to providing PWDs asa severe deficiency of the new systemthat would lead to increased fraud andabuse.

Because of resource constraints,among other things, state processingadds considerable time to the processingof applications in the current system.We believe we can retain the benefits ofstate labor market expertise withouthaving state staff processingapplications and thereby savesignificant processing time and expense.

We view centralized applicationprocessing as a customer-friendlychange that will simplify the laborcertification application process,remove duplicative efforts that occur atthe state and Federal levels, and resultin greater consistency in theadjudication of cases.

We believe the COs possess sufficientknowledge of local job markets,recruitment sources, and advertisingmedia to administer the programappropriately. We have acquired muchexpertise during our administration ofthe current system and expect tomaintain this expertise under the newsystem. Currently, we assess theadequacy of the recruitment before

making a final determination in eachcase. We will be making similarjudgments under the new system in thecourse of making determinations on thelabor certifications, auditingapplications and in overseeing anysupervised recruitment.

Guam requested it be allowed tocontinue its current role in processinglabor certifications. We do not believeGuams circumstances are so uniquethat it must have a role in processing theapplications to protect the wages andworking conditions of U.S. workers. Itsrole under the current permanent labor

certification regulations is no differentthan of the other states and territoriesthat have a role in the currentpermanent labor certification program.

2. Job Bank Orders

One commenter inquired how DOLintends to verify job order referrals withSWA staff, screen resumes receivedwhile conducting supervisedrecruitment, verify layoffs have notoccurred in the last 6 months in the areaof intended employment, verify theemployer is a bona fide employer with



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an active Federal EmployerIdentification Number (FEIN), andanswer employer questions and providetechnical assistance. The commenterrecommended the continuedinvolvement of SWAs in conductingsupervised recruitment for employers intheir states.

Another commenter was concerned

the proposed rule does not specificallyauthorize states to reject illegalspecifications in job orders or make itclear the SWA has this authority.Therefore, this commenterrecommended DOL add a provision toreinstate the ban against illegal jobduties and requirements, and to make itclear that employers who refuse todelete illegal duties or requirements willnot be allowed to submit theirapplication.

Still another commenter noted underthe proposed rule all jobs must be listedin a Job Bank, which will result in anincreased burden on the SWAs. Thecommenter suggested if user fees are notrequired, the Federal governmentshould cover this additional cost as partof the alien labor certification process.The commenter also recommended: (1)Using the SWAs resumeunit staff toprocess these Job Bank orders after thecurrent backlog decreases, and (2)tracking labor certification applicationsto monitor employers recruiting efforts.

Under the new regulation, job orderssubmitted under 656.17(e) will beindistinguishable from any other joborders placed by employers. Referralswill be handled the same way they are

handled for other job orders, which mayvary from state to state. Undersupervised recruitment, applicants will

be directed to respond to the CO. Issuesregarding layoffs are addressed in thepreamble discussion of 656.17(k).

The general instructions in this finalrule, at 20 CFR 656.10(c) provide theemployer must certify the conditions ofemployment listed on the Application

for Permanent Employment Certification(Form ETA 9089). These attestationsinclude certifying the job opportunitydoes not involve unlawfuldiscrimination and the terms,

conditions, and occupationalenvironment are not contrary to Federal,state, or local law. Furthermore,although not specified in this final rule,the SWA can not accept job orders thatare not acceptable under theEmployment Service Regulations in 20CFR parts 651 through 658.

We have not determined whether anyadditional funds will be provided forany increased expenses resulting fromemployers submitting job orders underthe recruitment provisions at 20 CFR656.17(e) of this final rule. It should be

noted, however, all such activities arewithin the scope of the Wagner-PeyserAct, that processing job orders requiredunder this final rule are covered byexisting Wagner-Peyser grants, and weare not required to provide additionalfunds to the SWAs.

C. Definitions, for Purposes of This Part,

of Terms Used in This PartThe proposed rule made several

changes in 656.3 to the definitions ofthe terms used in part 656.

1. Definition of the Area of IntendedEmployment

The proposed rule defines an area ofintended employment as the areawithin normal commuting distance ofthe place (address) of intendedemployment. There is no rigid measureof distance that constitutes a normalcommuting distance or normalcommuting area because there may be

widely varying factual circumstancesamong different areas. If the place ofintended employment is within aMetropolitan Statistical Area (MSA) orPrimary Metropolitan Statistical Area(PMSA), any place within the MSA orPMSA is deemed to be within normalcommuting distance of the place ofintended employment; however, alllocations within a ConsolidatedMetropolitan Statistical Area (CMSA)will not be deemed automatically to bewithin normal commuting distance. The

borders of MSAs and PMSAs are notcontrolling in identifying the normal

commuting area; a location outside of anMSA or PMSA (or a CMSA) may bewithin normal commuting distance of alocation that is inside the MSA orPMSA (or CMSA). We acknowledge thatthe terminology CMSAs and PMSAs are

being replaced by the Office ofManagement and Budget (OMB).However, we will continue to recognizeuse of these area concepts as well astheir replacements.

One commenter touched on thedefinition of area of intendedemployment in its discussion ofalternate published surveys used todocument the prevailing wage (see ourdiscussion of prevailing wages below).The commenter noted that some surveyslist data for only the CMSA or for aregion of a state. While recognizingthese surveys may include employersfrom outside the normal commutingdistance, the commenter felt it washighly unlikely that prevailing wagerates are that sensitive to commutingdistance.

We reject the proposal to allow datafrom broader geographical areas becauseour program experience indicates that

wage rates vary with commutingdistance.

2. Definition of the Employer andEmployment

The definition of employer in theproposed rule reflected longstandingDOL policy, and has been modified toensure that persons who are temporarily

in the United States can not beemployers for the purpose of obtaininga labor certification. In addition, thedefinition of employment has beenmodified to specify that job dutiesperformed totally outside the UnitedStates can not be the subject of apermanent application for alienemployment certification.

Some commenters touched on thedefinition ofemployer. A DOLemployee proposed amendments to thedefinition of employer to addresssituations in which all workers at theplace of employment are independent

contractors and the creation of anemployee position is contingent on thegranting of a labor certification. Thecommenter was concerned the termworker in subparagraph (1) could beconstrued to include independentcontractors, and wanted to amend theregulation to make it unambiguous thatthe job opening must be for an employeeposition, not an independent contractorposition. Specifically, the commenterproposed to either amend the regulationto add the phrase that has anemployer-employee relationship withits workers or change a full-time

worker to a full-time employee orchange the definition ofjobopportunity to read a job opening foran employee instead ofa job openingfor employment.

In this final rule, the definition ofemployer has been clarified byremoving from the first sentence thephrase full-time worker and addingthe phrase full-time employee in lieuthereof. Further, a sentence has beenadded to the definition to underline thata certification can not be granted for anApplication for Permanent EmploymentCertification filed on behalf of anindependent contractor.

A SWA recommended includingholders of temporary visa types (i.e., Bvisitors visa) on the list of persons whoare temporarily in the United Statesand, therefore, are not included in thedefinition of employers for the purposeof obtaining a labor certification.

We agree that the list should includepersons on a B visa. Therefore, this finalrule adds visitors for business orpleasure to the list of persons who aretemporarily in the United States andwho can not be employers for the



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purpose of obtaining a laborcertification.

3. References to the Immigration andNaturalization Service

This final rule reflects the creation ofthe Department of Homeland Securityand the attendant governmentreorganization. All references in the

proposed rule to the Immigration andNaturalization Service (INS), in theDepartment of Justice, have beenchanged to either Department ofHomeland Security (DHS) or the UnitedStates Citizenship and ImmigrationServices (USCIS), in the Department ofHomeland Security.

4. Definition of the Standard VocationalPreparation and EducationalEquivalents

The proposed rule defined the termStandard Vocational Preparation(SVP) as the amount of lapsed timerequired by a typical worker to learn thetechniques, acquire the information, anddevelop the facility needed for averageperformance in a specific job-workersituation. Lapsed time is not the sameas work time; for example, 3 months oflapsed time refers to 3 calendar months,not 90 work days. The definitionincludes a list of SVP levels and thecorresponding amount of lapsed timefor each.

A university commenter noted theSVP level is for the most part unknownto most employers, and thanked DOL forincluding the information in theregulations. However, the commenter

felt the regulations should also includethe table of educational equivalenciesused to determine how many years ofexperience a given degree or course ofstudy is worth. The commenter notedthe employers job requirements can notexceed the SVP level assigned to the job,and complained the SVP values do notadequately reflect the actual amount ofexperience and education required forspecific positions. Citing full professorsas an example, the commenter noted theassigned SVP level is 8, which meansthe employer may require between 4 to10 years of combined education and

experience; however, universities rarelyhire anyone who has a Ph.D. (equivalentto 7 years of experience) and only 3years of experience. A secondcommenter simply asked that this finalrule clarify the O*NET job zones thatare referenced in the preamble to theproposed rule at 67 FR at 30472.

With respect to the commentersconcern that the proposed rule does notallow an employer to use jobrequirements that exceed the SVP levelassigned to the occupation, this finalrule reinstates a business necessity test

for job requirements that exceed theSVP level assigned to the occupation.See our discussion of business necessity

below. Revision of the SVP is beyondthe scope of this rulemaking.

ETA plans to utilize the guidanceprovided in the administrative directiveField Memorandum No. 4894, issuedMay 16, 1994, Subject: Policy Guidance

on Labor Certification Issues (FM). Insummary, the FM provided that ageneral associates degree is equivalentto 0 years SVP, a specific associatesdegree is equivalent to 2 years; a

bachelors degree is equivalent to 2years; a masters degree is equivalent to4 (2 + 2) years; and, a doctorate is 7 (2+ 2 + 3) years.

In administering this final rule, theDictionary of Occupational Titles (DOT)will no longer be consulted to determinewhether the training and experiencerequirements are normal; O*NET will beused instead. It should be noted,

however, the job opportunitys jobrequirements, unless adequately arisingfrom business necessity, must be thosenormally required for the occupationand must not exceed the SpecificVocational Preparation assigned to theoccupation as shown in the O*Net JobZones. More information about O*NET,including the O*NET job zones can befound at http://online.onetcenter.org/.

5. Definition of the State EmploymentSecurity Administration

One commenter noted the acronymsSESA and SWA are usedinterchangeably in some parts of the

proposed rule; for example, 655.731(a)(2)(ii)(A)(3) uses SESA. Thecommenter recommended to avoidconfusion, the definition ofStateEmployment Security Agency bemodified to include the phrase nowknown as State Workforce Agency

before the acronym SWA. As if tounderscore the confusion, a secondcommenter thought the use of SWA inthe definition was a typographical error.

We are amending only one section inpart 655 subpart H of the Code ofFederal Regulations. We use SESA in 655.731 to be consistent with part 655

subpart H (dealing with H1B and H1B1 applications), which references theSESA. However, in Part 656, we useSWA throughout. We have modified theheading of the definition in 656.3 toread State Workforce Agency (SWA),formerly known as the StateEmployment Security Agency (SESA).

D. Electronic Filing of Applications

In the Notice of Proposed Rulemaking(NPRM), we proposed that the employerwould submit two forms to an ETAapplication processing center. These

forms were designed to be machinereadable and we anticipated mostemployers would submit them byfacsimile transmission to an ETAapplication processing center.

1. Electronic Filing

Many commenters indicated theforms published with the NPRM were

not user friendly because they weredesigned to be machine readable tofacilitate submission by facsimiletransmission. Many commentersindicated because of problems duringthe implementation of the LCA Fax-

back system for H1B applications, weshould not require submission of theform by facsimile transmission. In viewof the success of electronic filing of H1B applications, commentersrecommended we use a system based onelectronic filing in the redesignedpermanent labor certification process.

We have decided to implement theredesigned labor certification processusing an electronic filing andcertification system. This system ispartially modeled after the system usedfor filing and certifying labor conditionapplications under the H1Bnonimmigrant program. Employers willalso have the option to submitapplications by mail.

Under the e-filing option, theApplication for Permanent EmploymentCertification (ETA Form 9089) must becompleted by the user on-line. Thesystem will assist the employer bychecking for obvious errors, and willinput the information into an ETA

database. This will speed the process ofevaluating the application, and help toprevent data entry errors. ETA willaccept mailed hard copy applicationsfrom those who either have no access tothe internet or simply choose to submita form completed by hand. Submissionof applications by facsimiletransmission will not be accepted,

because our experience indicatesfacsimile submissions can not be reliedon for consistent, error-free receipt andreturn of applications. We havedetermined that average processing timewill be considerably shortened if we

limit submission of applications toelectronic filing or by mail.Applications submitted by mail will not

be processed as timely as those filedelectronically.

The comments pertaining to userfriendliness were considered indesigning the electronic filing systemand consolidating the Application forPermanent Employment Certificationand Prevailing Wage DeterminationRequest(PWDR) form proposed in theNPRM into a single application form(see discussion below). We believe the

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consolidated form addresses virtuallyall of the issues regarding the lack ofuser friendliness of the proposedforms. For example, as suggested bycommenters, the items formerly on thePWDR, such as the job description andrequirements and prevailing wagedetermination, are now on theapplication form.

Employers will, as discussed below inthe section on prevailing wages, requesta PWD using the form required by thestate in which the job is being offered.Information from the states prevailingwage determination request form, suchas the prevailing wage, occupationalcode, occupational title, statedetermination number, and the date thedetermination was made, will beincluded on the application form. Theemployer will be expected to retain thestate prevailing wage determinationform to furnish to the CO if requestedto do so in the event of an audit or

otherwise.2. Elimination of the Prevailing WageDetermination Request Form (ETA9088)

Under the current permanent laborcertification program, requests for PWDare made to the SWAs on the variousforms the SWAs have developed foremployers to use in submitting suchrequests. The NPRM sought tostandardize the process wherebyemployers make requests to the SWAsfor PWD by proposing all requests besubmitted on the PWDR. However, afterreviewing our experience under the H

1B program with the FAX-based filingsystem and the comments received onthis issue we have decided toimplement electronic filing by the use ofa consolidated form. The consolidatedform includes most of the itemsproposed for the Application forPermanent Employment Certificationand the information that would have

been provided by the PWDR. Thisincludes the information that theemployer would have provided on thePWDR, such as the job description andjob requirements, as well as theinformation that the SWAs would have

entered on the PWDR, such as theprevailing wage determination and theSWA tracking number.

Another reason why we have chosennot to require one standardized form beused by employers to submit requestsfor prevailing wage determinations tothe SWAs is because such a requirementwould, in effect, impose an unfundedmandate on the SWAs to developcomputer systems to support theproposed PWDR. It also became evidentthat, assuming funding were available todevelop the computer systems necessary

to support the PWDR, several yearswould elapse before such systemswould be operational in all of theSWAs.

Accordingly, employers will continuethe practice of requesting PWD from theSWAs on the various forms developedfor this purpose by the SWA.

3. Multiple BeneficiariesOne commenter suggested DOL allow

a single application to be used tosupport multiple vacancies/

beneficiaries. Multiple beneficiaryapplications are discussed under the

basic process below.

4. Assistance in Completing theApplication Form

Several commenters suggested DOLprovide assistance in completing theapplication form. Among thesuggestions were the creation of a toll-free number, an instruction handbook,

and detailed instructions on theinternet. We hope to make all of thesemethods available, although some maynot be available upon initialimplementation of the new system.

5. Recommended Changes to theApplication Form

Commenters provided many specificsuggestions for both the applicationform and the instructions. Thosesuggestions have been reviewed andmany have been incorporated into therevised ETA Form 9089 andinstructions, which have been

submitted to the OMB for approval andfollow the final rule. The changes mostoften requested and our responses areprovided below. Include on the first page a box for

the employer to indicate whether therequest is for a Schedule A occupation,with instructions reminding the userthat, for Schedule A occupations, therecruitment sections of the form neednot be completed and the form should

be submitted directly to USCIS forprocessing. We have modified the formto include these suggestions. Clarify on the form that the special

requirement process includes theoptional process for college anduniversity teachers. We removed thespecial requirement process item and,under the recruitment section, includedthe optional process for college anduniversity teachers. Change the term Education or

Training: Highest Level Required (seethe proposed ETA Form 9088, Itemsection H) to Education and Training:Minimum Level Required. We havemodified the new form 9089 to includethis suggestion.

We addressed the commentsregarding the need to specify technicaldegrees by adding a blank spaceidentified as Other. This changeallows the degree to be filled in by theemployer. The number of technicaldegrees that commenters wished to haveidentified was too large to incorporateas a checklist on the application form.

Change Wage Offer Information (seethe ETA Form 9089, section G) to read:Offered Wage Range, From:llTo:ll. Several commenters indicated theform should ask for a wage rangeinstead of a specific wage rate. We havemade this change to clarify thatemployers can offer a wage range aswell as a specific rate as long as the

bottom of the wage range (reflected inthe From box) is not below theprevailing wage. One commenter requested there be

a box on the application form allowingthe employer to go directly to

supervised recruitment, rather thanconduct pre-filing recruitment. We havedecided not to provide this option toemployers. The supervised recruitmentprocess is lengthy, and is one of thereasons the current system is severely

backlogged. Supervised recruitment willbe conducted only if ordered by the CO.

E. Schedule A

The proposed rule did not change thegeneral requirements for Schedule Apre-certification. It proposed a technicalchange for the description of Group Iprofessional nurses, specifying that onlya permanent, full and unrestricted state

license from the state of intendedemployment may be used as analternative to passage of theCommission on Graduates of ForeignNursing Schools examination (CGFNS).It also proposed moving aliens ofexceptional ability in the performingarts (included under 656.21a(a)(1)(iv)of the current regulations) to Group II ofSchedule A.

We received several comments aboutthe requirements for pre-certification forprofessional nurses. A number ofcommenters proposed additionaloccupations and classes of aliens to be

added to Schedule A. No commentersobjected to moving aliens withexceptional ability in the performingarts to Group II ofSchedule A.

1. Nurses

As proposed, an employer seekingpermanent labor certification for aprofessional nurse must file, as part ofits application with the DHS,documentation the alien has passed theCGFNS examination. Alternatively, theemployer may document the alien has apermanent, full and unrestricted license



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to practice nursing in the state ofintended employment.

A number of commenters suggestedchanges in the proposed rule that wouldallow a greater number of nurses toreceive certification under Schedule A.Several commenters addressed therequirement that foreign-trained nursesmust demonstrate passage of the CGFNS

examination. One commenter supportedthe proposed rules requirements forhandling Schedule A applications,including the option of documentingthat the alien holds a permanent licenseas an alternative to passage of theexamination.

Three commenters mistakenlythought that we were removing passageof the CGFNS examination as a meansof certification. This appears to have

been a misunderstanding of thepreamble to the proposed rule, whichstated: only a permanent license can beused to satisfy the alternativerequirement to passing the [CGFNS]exam (see 67 FR at 30469). Theproposed rule did not delete passage ofthe CGFNS examination asdocumentation of eligibility as aSchedule A professional nurse. The onlychange proposed was to specify that thefull and unrestricted state license must

be a permanent license. This revisionconforms the general descriptions ofaliens seeking Schedule A certificationas professional nurses at 656.5(a)(2) tothe procedures regarding documentaryevidence to support a Schedule Acertification at 656.15(c)(2).

One commenter requested

clarification as to whether the rulerequires a CGFNS Certificate or simplyevidence of passing the CGFNS nursingskills examination. The commenternoted that successfully passing theCGFNS nursing skills examinationresults in issuance of a pass letter.The CGFNS Certificate is only issued ifthe individual has passed the nursingskills examination, demonstratedEnglish language proficiency (bypassing the Test of English as a ForeignLanguage or a similar exam) and CGFNShas made a favorable evaluation of theindividuals nursing credentials. This

and another commenter requested theregulation be clarified to specify thatpassage of the CGFNS nursingexamination, and not a CGFNSCertificate, is adequate documentationto satisfy 656.15(c)(2).

After reviewing the comments, andinformation from CGFNS, we havemodified the proposed rule to require inthis final rule a CGFNS Certificate, notmerely proof that the alien has passedthe CGFNS nursing skills examination.When the current regulation was draftedCGFNS did not issue a Certificate, but

instead required applicants to pass a testthat evaluated both English proficiencyand nursing skills. As such, weunderstood passage of the CGFNSnursing examination to include bothfactors. We believe proficiency inEnglish is essential to perform the jobduties of a professional nurse in theUnited States, due to the need to

communicate with doctors and patients.The current CGFNS Certificate isanalogous to passage of the old CGFNSnursing exam.

Several commenters supported addinga provision allowing alien nurses whopass the National Council LicensureExamination for Registered Nurses(NCLEXRN), administered by theNational Council of State Boards ofNursing (NCSBN), to qualify forSchedule A. The commenters contendedthat because every state requires passageof the NCLEXRN before issuing apermanent license, proof of passing

should be another means to qualifyunder 656.5(a)(2). Although theavailability of the examination only inthe U.S. and its territories had been a

burden for foreign-trained applicants inthe past, the commenters noted that theNCLEXRN is being given in morelocations abroad and some organizations

bring foreign nurses to the U.S. to takethe examination.

Our intent in promulgating theexisting and proposed Schedule Aprocedures for professional nurses wasto put an end to the pre-1981 practicewhereby some nurses entered theUnited States on temporary licenses and

permits, but failed to pass stateexaminations for a permanent license.We have determined that passage ofNCLEXRN examination is consistentwith and furthers the policy rationalefor allowing CGFNS Certification as analternative to holding a permanent, fulland unrestricted license to practicenursing in the state of intendedemployment. This final rule includes aprovision in 656.15 allowingcertification by demonstrating passageof the NCLEXRN.

A few commenters noted proceduralproblems posed by the requirement of a

permanent state license in the state ofintended employment. Commentersasserted many states will not issue apermanent license until the applicanthas a Social Security number, evenwhen the nurse has passed the NCLEXRN. Because the NCLEXRN is the finalhurdle to the practice of nursing in astate, the commenters urged DOL toallow a foreign nurse to satisfy thepermanent license requirement byhaving a letter from a state nursing

board attesting to the nurse havingpassed the NCLEXRN and having full

eligibility for the RN license, pendingreceipt of a Social Security card. Acommenter noted Alaska and a fewother states already follow this practice.

Other commenters identifiedadditional state-imposed obstacles tousing the permanent license alternative,including refusal to issue a permanentlicense until the foreign-trained nurse

has arrived in the United States, orrequirements for in-state residence, avalid visa, and fingerprint screening.Allowing a foreign-trained nurse tosatisfy the permanent licenserequirement by documenting success onthe NCLEXRN would also alleviatethese barriers, according to thecommenters.

Two commenters raised a relatedissue about nurses who hold apermanent license in one state and arethe beneficiary of a petition foremployment in another state. In thissituation, the alien nurse would not

have to pass an examination in thesecond state, but would initially begiven a temporary license in order topractice. The commenters maintainedthis type of temporary license should bedistinguished from those situations inwhich the alien does not have apermanent license in any state. Becauseit believed that a temporary license inthis situation is the functionalequivalent of a permanent license, AILAsuggested DOL add the followingadditional alternative to 656.15(c)(2),to include alien nurses who hold atemporary license in the state of

intended employment and require nofurther examination to attain permanentlicensure in that state.

We have decided not to recognizetemporary licensure in the state ofintended employment. As we have

broadened the rule to include passage ofthe NCLEXRN as qualifying forSchedule A, we believe virtually allalien nurses who have temporarylicensure would be covered under thisrule. This avoids any need todistinguish between different types oftemporary licenses. In addition, theNCSBN indicates several states have

passed legislation authorizing NurseLicensure Compacts, which allow anurse licensed in his or her state ofresidence to practice nursing in anotherstate. It is anticipated that most stateswill pass legislation to authorize theNurse Licensure Compact, and adoptthe mutual-recognition model of nurselicensure. In the event of suchlegislation being passed, concerns raised

by several commenters where an aliennurse is licensed in one state, but issponsored to practice in another state,would be resolved.



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2. Performing Artists

We received several commentssupporting the proposal to addperforming artists of exceptional abilityto Group II ofSchedule A. Nocommenters opposed this proposal.Accordingly, this final rule providesthat performing artists of exceptional

ability are included in Group II ofSchedule A.

3. Expansion of Schedule A

Several commenters recommendedexpansion ofSchedule A to pre-certifycertain occupations or classes of aliens.

A high-tech company recommendedexpanding Schedule A occupations toprovide for an earned laborcertification for otherwise excludedforeign nationals when beneficial to theU.S. economy. This category wouldinclude employees who gainedirreplaceable experience on the job,performed unusual combinations of

duties or key duties; or who worked forthe employer or its subsidiaries for aspecified period of time, either withinor outside the U.S.; and employeeswhose efforts had created jobs for U.S.workers. The commenter claimedincluding these categories underSchedule A would not interfere withstreamlining and would protect U.S.workers, relieve DOL of its adjudicationresponsibilities because its burdenwould be shifted to USCIS ServiceCenters, and would afford an outlet toa deserving class that would otherwise

be denied access to permanent

residency under the proposed rule.Similarly, AILA recommendedexpanding Schedule A occupations toaccommodate special merit foreignnationals, including company foundersand managers; key employees inmanagerial, executive, or essentialpositions in affiliated, predecessor, orsuccessor-in-interest companies;employees who have been employed bya U.S. employer for a certain number ofyears and gained irreplaceable trainingand experience in distinct positions;and employees central to the existenceof the employer.

Another commenter expressedconcern that the proposed rule wouldadversely affect small businesses bydeclaring a large number of deservingaliens to be ineligible for laborcertification. The commenter pointed toa list of such deserving but ineligiblealiens: small business investors;employees in key positions whopreviously worked for affiliated,predecessor, or successor entities;employees who gained essentialexperience with the sponsoringemployer; employees who are required

to perform rare or unusual combinationsof duties; and alien workers who are soinseparable from the sponsoringemployer the employer would beunlikely to continue in operationswithout the alien. The commenter urgedexpanded use ofSchedule A to coverthese classes of aliens who wouldotherwise be denied access to

permanent residency.All of these comments fail to address

the core premise for Schedule A;namely, pre-certification of occupationsfor which there are few qualified,willing, and available U.S. workers.Most of the categories suggested bycommenters, such as key employees,employees with special or unique skills,and small business investors are notoccupational categories; instead, asadmitted by most of the commenters,they are categories of foreign workers. Inlight of our revisions to 656.17(h) and(i) regarding job requirements and actual

minimum requirements, some foreignworkers with special or unique skillsmight be eligible for labor certificationunder the basic process. Regarding alienworkers who are so inseparable from thesponsoring employer that the employerwould be unlikely to continue inoperation without the alien, we havelong held the position that if a jobopportunity is not open to U.S. workers,it is not eligible for labor certification.

In addition to the above-citedcategories, AILA proposed thatSchedule Abe revised to clarify thedistinction between aliens ofextraordinary ability, covered by 8

U.S.C. 1153(b)(1), and aliens ofexceptional ability, covered by ScheduleA, Group II. AILA noted when DOLpublished the regulations implementingthe Immigration Act of 1990 (IMMACT90), we recognized some aliens mayqualify under Schedule A, Group II, asaliens of exceptional ability but may not

be able to qualify as an alien ofextraordinary ability. See 56 FR at54923 (October 23, 1991). AILA claimedDHS has continued to apply DOLs pre-IMMACT 90 definition of exceptionalability, and has denied eligibility forSchedule A, Group II, unless the higher

post-IMMACT 90 standard ofextraordinary ability can be satisfied.AILA recommended we revise thedefinition of aliens of exceptionalability in a manner that makes materialdistinctions between exceptional andextraordinary ability. AILA suggestedwe develop a checklist of factors toestablish exceptional ability analogousto the DHS criteria for aliens ofextraordinary ability. AILA alsosuggested we allow the submission ofother comparable evidence toestablish the aliens eligibility as a

worker of exceptional ability, andpermit exceptional ability aliens with areasonable plan for job creation to self-sponsor under Schedule A. AILA furthersuggested we add persons withexceptional ability in business to GroupII ofSchedule Abecause business is asubset of science.

Whether or not a given application or

alien beneficiary qualifies for ScheduleA pre-certification is determined byDHS. We believe the criteria for aliensof exceptional ability in the sciences orarts at 656.15(d)(1) are clear and donot need to be revised. Except for therecommendation we add a criterion forother comparable evidence ofexceptional ability, the commentermade no specific suggestions as to howthese criteria should be revised. We donot adjudicate Schedule A applications,and DHS rarely contacts our office foradvisory opinions on these cases. If, asAILA claims, DHS has failed to adhere

to the appropriate regulatory standardsin reviewing applications for aliens ofexceptional ability, recommendationsfor procedural changes should be madeto DHS, not to DOL.

We have determined that we will notadd any new occupations oroccupational categories to Schedule Ain this final rule not included in theNotice of Proposed Rulemaking. To addan occupation to Schedule A, we believeit is advisable to issue a proposed ruleand provide an opportunity for publiccomment.

Four university commenters urgedDOL to include college and university

teachers under Schedule A. Thecommenters claimed because virtuallyall such cases are certified under thecurrent special handling requirementsof 656.21(a), these occupations should

be moved to Schedule A. Thecommenters asserted this would allowDOL to focus its resources on other, lessmeritorious cases.

We have no evidence of a lack ofqualified, willing, and available U.S.workers in the occupation of college anduniversity teacher. Absent evidence of alack of available workers, we see nocompelling reason why this

occupational category should be addedto Schedule A. If a college or universityteacher can be considered an alien ofexceptional ability in the sciences orarts, such an individual may be eligiblefor Schedule A pre-certification under 656.5(b)(1). Further, we note specialrecruitment procedures for college anduniversity teachers are available underthis final rule.

AILA also suggested DOL create aprovision for Schedule A that wouldincorporate a flexible, just-in-timesystem for occupation shortages. As



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proposed by AILA, DOL would expandthe use of technology already inherentin the new system to collect real-worlddata on job needs in particular jobmarkets. DOL could then allow forflexible opening and closing of a specialSchedule A group in response to acute,localized labor shortages.

As with the other proposals to expand

the categories of workers covered underSchedule A, the just-in-time systemproposed by AILA would requireadditional rule making. We are alsounsure whether data would be availableto successfully implement such asystem. While we anticipate theautomated system will capture dataregarding occupations being sponsoredfor labor certification, it is not clear alloccupations being sponsored for laborcertification are experiencing a lack ofavailable workers.

4. Prevailing Wage DeterminationRequirement

Two commenters objected to therules requirement that an employermust obtain a prevailing wagedetermination for Schedule Aoccupations. One commenter assertedthe current regulations do not require aprevailing wage determination forprofessional nurses, and this practiceshould continue. Similarly, AILAreasoned the wage determinationrequirement was unwarranted andwould impose an unnecessary burdenon the employer and the SWAs. AILAalso contended DOL has alreadydetermined that hiring of foreign

workers for Schedule A occupationswill not depress wages for U.S. workers.As an alternative, AILA suggested DOLamend the application form to includean attestation that the employer is filinga Schedule A application, and then addlanguage exempting the employer fromthe requirement of obtaining a SWA-issued prevailing wage. According toAILA, DHS requires an employer offerletter or similar documentationdescribing the position and offeredwage.

This final rule retains the prevailingwage requirement for a number of

reasons. First, the employer has alwaysbeen required to certify that it is offeringat least the prevailing wage for theoccupation. Second, the current as wellas the proposed regulation require anImmigration Officer to determinewhether the employer and alien havecomplied with 656.10, GeneralInstructions, including whether theemployer has attested to the conditionslisted on the Application for PermanentEmployment Certification form (ETA9089), which includes a requirement theemployer attest it is offering at least the

prevailing wage. Third, the fact DHSasks for documentation describing theposition and offered wage has nothingto do with whether the employer isactually offering the prevailing wage.

5. Technical Correction

We have corrected the reference at theend of the first paragraph in 656.5,

Schedule A from 656.19 to 656.15.F. Elimination of Schedule B

We proposed to eliminate Schedule Bbecause our program experienceindicated it has not contributed anymeasurable protection to U.S. workers.Once an employer files a Schedule Bwaiver, the application is processed thesame as any other application processedunder the basic process. Whether or notan application for a Schedule Boccupation is certified is dependentupon the results of the labor market testdetailed in 656.21 of the current

regulations.A few commenters addressed theproposed change. Two commenterssupported the elimination ofScheduleB. Both of these commenters pointedout Schedule B occupations requirelittle or no experience, and employeescan be trained quickly to perform them.Two commenters opposed theelimination ofSchedule B and suggestedeliminating the Schedule B waiverinstead.

We can not maintain Schedule Bwithout a provision for a waiver.Schedule B is a list of occupations inwhich there generally are sufficient U.S.

workers who are able, willing, qualifiedand available. It is not a blanketdetermination there are sufficientworkers for the occupations onSchedule B in every area of intendedemployment in which employers maywish to employ foreign workers.Therefore, there must be a waiver foremployers located in areas in which thegeneral determination may not apply.Accordingly, this final rule does notcontain a provision for Schedule Boccupations.

G. General Instructions

General instructions for filingapplications, representation,attestations, notice, and submission ofevidence are provided in 656.10.

1. Financial Involvement

One commenter noted alienbeneficiaries, not employers, drive thelabor certification process. Thecommenter suggested this final rulerequire documentation of theemployers financial involvement, or,alternatively, prohibit employers,agents, or attorneys from requiring

aliens to pay the costs of the laborcertification process and provide forpenalties for imposing these costs on thealien beneficiary.

While the suggestion to have theemployer provide documentation offinancial involvement may be of somemerit, it was not included in the NPRM,and is a major departure from past

practice; consequently, we believe wewould have to issue a new proposedrule before we could promulgate a rulerequiring such documentation. We

believe it is more important to issue afinal rule at this time to achieve the

benefits under this final rule than tosubstantially delay realization of such

benefits that would result by theissuance of another NPRM.

It should be noted, however, evidencethat the employer, agent, or attorneyrequired the alien to pay costs could beused under the regulation at 656.10(c)(8) to determine whether the

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

2. Representation

a. Attorneys and Agents

The NPRM did not propose anymodifications to the provision in thecurrent regulation at 20 CFR656.20(b)(1) (found in this final rule at656.10) that allows employers andaliens to be represented by agents orattorneys. However, two attorneys urgedwe eliminate representation ofemployers and/or aliens by agents asprovided in the current regulation. The

commenters advanced three reasons fortheir recommendations. Theymaintained that: Allowing representation by agents

was contrary to statutes in all 50 statesprohibiting the unauthorized practice oflaw; Unlicensed agents are the ones most

prone to perpetuate fraud on theDepartment of Labor and clutter thelabor certification processing systemwith frivolous or poorly prepared cases;and DOL should issue a regulation

similar to the one issued by DHS at 8

CFR 292 that governs the representationof employers and aliens before the DHS.Amending the regulations at 20 CFR

656.10(b) as proposed by thecommenters would be a major departurefrom our longstanding practice allowingrepresentation by attorneys and agents,and may have serious consequences forthose individuals who are now allowedto represent employers and/or aliens inthe capacity of an agent. We believe itwould be prudent before making such amajor change in our longstandingpractice and procedures to issue another



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proposed rule and consider thecomments we would receive on theproposal.

b. Notice of Entry of Appearance (FormG28)

Another commenter recommendedemployers as well as attorneys berequired to sign the Notice of Entry of

Appearance (Form G28). Thecommenter maintained not requiring theemployer to sign the Form G28encourages fraudulent practices, asemployers at times have no knowledgeof the labor certification application orof the attorney purporting to representthem.

The labor certification processprovided by this final rule does notrequire a Form G28 if the employer isrepresented by an attorney. Requiring aForm G28 would be incompatible withthe electronic filing system provided forin this final rule. Elimination of the G28 will not inhibit or impede efforts tocombat fraud. Under this final rule,employers will be required to sign insection N of the Application forPermanent Employment Certification anemployer declaration which, amongother things, states the employer hasdesignated the agent or attorneyidentified in section E of the applicationform to represent it, and by virtue of itssignature, takes full responsibility forthe accuracy of any representationsmade by the employers attorney oragent.

c. Retention of Documents by Attorney

One attorney believed someimmigration attorneys admonish theiremployer-clients to retain theenumerated recruitment documents fortheir records but not supply thedocuments to the attorney so theattorney can maintain plausibledeniability for any document violation.The commenter recommended theattorney of record should be required tomaintain copies of recruitmentdocuments so he or she may be heldaccountable for the content of theapplication form. We believe it issufficient under this final rule that the

employer will be required to furnishrecruitment documentation in the eventof an audit or as otherwise required bya CO.

3. Attestations

Two commenters challenged theproposal in the NPRM to remove theregulatory requirements that theemployer attest to the ability to pay thewage or salary offered to the alienworker and to place the alien on thepayroll on or before the date of thealiens entrance into the United States.

We have been informed that DHS isplanning to amend its regulation at 8CFR 204.5(g), which currently focuseson the ability to pay the proffered wagein the course of processing theemployment-based immigrant petition,to require evidence focusing on the bonafides of the employer.

DHS does not have a regulation that

focuses specifically on the employersability to place the alien on the payrollon or before the date of the aliensproposed entrance into the UnitedStates. Ability to pay and the ability toplace the alien on the payroll are notnecessarily the same. An employer can

be fiscally solvent but it may not berealistic, for example, to expect theplant or restaurant that is in theplanning stage or under construction atthe time the application is filed to becompleted when the alien or U.S.worker is available to be employed inthe certified job opportunity.

After reviewing the comments andconsidering DHS planned revisions toits regulation, we have concluded that,in an attestation-based program wherein the majority of cases the employerssupporting documentation will not beavailable to the reviewer, it isappropriate to require the employer toattest to its ability to pay the alien andto place the alien on the payroll. Itshould also be noted the employersability to place the alien on the payrollis not addressed by DHS regulations.

Similarly, although rejection of U.S.workers for lawful, job-related reasons is

dealt with in the regulation section onthe recruitment report, and although thepermanent full-time nature of the jobopportunity, and requireddocumentation is included in thedefinition ofemployment, we haveconcluded it would be beneficial in thecontext of an attestation-based system toadd certifications addressing theseissues. We have revised the final ruleaccordingly.

4. Notice

a. Expansion of Notice Requirement

Several commenters addressed the

expansion of the posting requirement torequire, in addition to posting a noticeof the filing of the ETA Form 9089 inconspicuous places at the employersplace of employment, the employerpublish the posting in any and all in-house media, whether electronic orprinted, in accordance with the normalprocedures generally used in recruitingfor other positions in the employersorganization.

Several commenters expressedconcerns about the expansion of theposting requirement in the NPRM. One

commenter expressed the view theinformation in proposed 656.10(d)(3)informing employees how they canfurnish documentary evidence bearingon the application to the CO is not inaccordance with normal recruitmentprocedures.

AILA stated employers do notnormally post via in-house media for

certain positions, such as senior orexecutive positions, because ofconfidentiality concerns. AILAsuggested DOL amend the rule toprovide that an employer post internallythrough any and all media normallyused for other similar positions. A largeemployer asserted publishing anemployment posting in any and all in-house media is extraordinarily broadand could be construed to includetraining films, publicity postings, and amyriad of unrelated and unhelpfulvenues. This employer suggested therequirement in 656.10(d)(ii) of the

proposed rule be changed to read (i)naddition, the employer must publish theposting in accordance with the normalprocedures used for the recruitment ofother positions in the employeesorganization, thereby assuring thatregular and accepted industry practicesare followed in the labor certificationprocess.

Three universities were of the viewthe expanded posting requirementswould not yield many applicants forhighly specialized research and facultypositions. One university indicated itposted jobs in on-line and in-housepublications normally read by current or

potential employees. However, it didnot publish faculty and academicresearch positions at those locations, asit did not see any positive result fromdoing so.

A SWA supported expanding theposting requirement to include any andall in-house media. The SWA noted itsexperience indicated employmentpostings are poorly presented and oftenvirtually invisible on employer bulletin

boards.Another SWA noted the current

posting requirement has not providedany applicants for job openings, and

noted the expanded posting requirementdoes not provide any incentive forcurrent employees to refer friends orrelatives to the employer. The SWArecommended that employers should beencouraged to include a finders orreferral fee in the posted notice.

With respect to the commentconcerning the requirements at 656.10(d)(3) in the proposed and finalrule concerning the furnishing ofdocumentary evidence bearing on theapplication, 656.10(d)(3) was draftedto implement the statutory requirement



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provided by Section 122(b) of IMMACT90 that provided for the current noticerequirement and provided, in relevantpart, any person may submitdocumentary evidence bearing on theapplication for certification (such asinformation on available workers,information on wages and workingconditions, and information on the

employers failure to meet the terms andconditions with respect to theemployment of alien workers and co-workers). It should also be noted theprovision at 656.10(d)(3) is similar tothe provision in the current regulationat 20 CFR 656.20(g)(3).

With respect to comments regardingthe occupations subject to the postingrequirement and the requirement theemployer post internally through anyand all media, it should be understood,as indicated above, the noticerequirement in the regulations has beena statutory requirement since the

passage of IMMACT 90. Section122(b)(1) of IMMACT 90 provides nocertification may be made unless theemployer-applicant, at the time of filingthe application, has provided notice ofthe filing to the bargainingrepresentative or, if there is no

bargaining representative, to employeesemployed at the facility through postingin conspicuous places. In our view,Congress primary purpose inpromulgating the notice requirementwas to provide a way for interestedparties to submit documentary evidence

bearing on the application forcertification rather than to provide

another way to recruit for U.S. workers.See 8 U.S.C. 1182 note.

Because the notice requirement isstatutory, we do not believe thatexceptions to the notice requirementcould be based on the occupationinvolved in the application. As oneSWA noted, printed postings on bulletin

boards under the current regulation at20 CFR 656.20(g) are poorly presentedand often virtually invisible. Theposting regulation at 656.10(d)(1)(ii) inthis final rule provides, in relevant part,the posting must be published in anyand all in-house media in accordance

with the normal procedures used for therecruitment of other similar positions.For example, we would not expect aposting in a publication devoted tohealth and safety issues if job vacancieswere not normally included in thatpublication.

With respect to the recommendationby one SWA employee that employersshould be required to include a findersor referral fee, we believe it isinappropriate to provide such anincentive under the posting regulations,

because, as indicated above, the posting

requirement is not designed to be arecruitment vehicle. We have, however,included referral incentives as one ofthe options employers may use inrecruiting for professional workers in 656.17(e)(1)(ii) of this final rule.

b. Notice for Schedule A Applications

AILA questioned our basis for

requiring employers to comply with thenotice requirement for applications filedwith DHS on behalf ofSchedule Aoccupations. AILA pointed out thatSchedule A occupations are bydefinition those for which DOL hasalready determined that there are notsufficient U.S. workers who are able,willing, qualified, and available for theoccupations listed, and the wages andworking conditions of U.S. workerssimilarly employed will not beadversely affected by the employment ofaliens. Therefore, no recruitment isrequired for Schedule A applications,and the adjudication of suchapplications has been placed by theDOL under the jurisdiction of DHS.AILA indicated it would serve nopurpose for employers ofSchedule Aapplications to provide notice, and DOLshould consider eliminating theunnecessary posting burden foremployers.

We have concluded employers mustcomply with the posting requirement tofile applications under Schedule A withDHS. As we point out above, the statuteprovides no certification can be issuedunless the employer has provided therequired notice. Second, as stated

previously, in our view Congressprimary purpose in promulgating thenotice requirement was to provide ameans for persons to submitdocumentary evidence bearing on theapplication. This could, for example,include documentation concerningwage or fraud issues. Requiringemployers to provide notice of theirSchedule A applications is consistentwith the practice under the currentregulation at 20 CFR 656.20(g)(1). Wehave required employers to providenotice in connection with theirSchedule A applications since the

passage of IMMACT 90. See 56 FR at54924.

c. Wage Range and Inclusion of Wage inNotice

AILA noted the NPRM proposed thatitems required to be included in therecruitment advertisement ( 656.17(f)),including the wage offered, must also beincluded in the notice. AILAmaintained the salary is often notprovided by most employers whenusing in house media or is simplyreferred to by a grade level. AILA also

maintained an employer should be ableto use a salary range in the posting aslong as the bottom of the range meetsthe prevailing wage.

AILA also said, after analyzing theinterplay between 656.21(b)(6),656.21(g)(6), and 656.21(g)(8) under thecurrent regulations, they construed theno less favorable than offered the

alien language in 656.21(g)(8) torequire the employer to advertise a wageoffer no less than the aliens wage wheninitially hired; assuming, of course, thewage offer also meets or exceeds theprevailing wage.

Employers can use a wage range inthe required notice. It is longstandingDOL policy that the employer may offera wage range as long as the bottom ofthe range is no less than the prevailingrate. See page 114 ofTechnicalAssistance Guide No. 656 LaborCertifications (TAG). However, theprevailing wage, which provides the

floor for the wage range, must be theprevailing wage at the time therecruitment was conducted for theapplication for which the employer isseeking certification, not the prevailingwage when the alien beneficiary wasinitially hired.

The advertising requirements at 656.17(f) of this final rule no longerinclude wage or salary information;however, the wage offered must beincluded in the notice. The regulationsimplement the statute, which providesno certification may be made unlessthe applicant for certification has at thetime of filing the application, provided

notice of the filing. Because the ETAForm 9089 includes the offered wage,the employer must include in the noticethe wage offered to the alien beneficiaryat the time the application is filed.Alternatively, the employer may includea salary range in the notice, as long asthe bottom of the range is no less thanthe prevailing wage rate. The wage paidto the alien when initially hired isirrelevant.

5. Timing and Duration of the Notice

A few comments addressed whennotice must be provided and the

duration of the notice if it isaccomplished by posting at theemployers facility.

a. When the Notice Must Be Provided

AILA indicated the requirement in theNPRM that the notice must be posted

between 45 and 180 days before filingthe application was confusing in light ofthe recruitment provisions at 656.17(d)of the NPRM, which requiresrecruitment be undertaken not less than30 days or more than 180 days beforefiling the application. AILA
