Measures for Increasing Efficiency In the Permanent Labor Certification Program

[Federal Register Volume 64, Number 85 (Tuesday, May 4, 1999)]
[Notices]
[Pages 23984-23986]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11131]



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Part V





Department of Labor





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Employment and Training Administration



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 Measures for Increasing Efficiency in the Permanent Labor 
Certification Program; Notice

Federal Register / Vol. 64, No. 85 / Tuesday, May 4, 1999 / Notices

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DEPARTMENT OF LABOR

Employment and Training Administration
[General Administrative Letter No. 1-97, Change 1]


Measures for Increasing Efficiency In the Permanent Labor 
Certification Program

AGENCY: Employment and Training Administration, Labor.

ACTION: Notice.

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SUMMARY: The Employment and Training Administration is publishing for 
public comment General Administrative Letter (GAL) No. 1-97, Change 1, 
Subject: Measures for Increasing Efficiency in the Permanent Labor 
Certification Process, which it issued as a result of the settlement 
agreement reached in Lauretta V. Herman (No. 98-56061, (9th Cir. March 
5, 1999)). GAL 1-97 was originally issued on October 1, 1996. GAL 1-97, 
Change 1, published below differs from the October 1, 1996, issuance 
primarily in that the efficiency measure of having unduly restrictive 
job requirements adjudicated prior to allowing advertisements to be 
published has been removed.

DATES: Interested persons are invited to submit written comments on GAL 
1-97, Change 1 on or before July 6, 1999.

ADDRESSES: Submit written comments to the Assistant Secretary for 
Employment and Training, U.S. Department of Labor, 200 Constitution 
Avenue, NW. Room N-4456, Washington, DC 20210, Attention: John R. 
Beverly, III, Director, U.S. Employment Service.

FOR FURTHER INFORMATION CONTACT: Mr. Denis Gruskin, Senior Specialist, 
Division of Foreign Labor Certifications, Employment and Training 
Administration. 200 Constitution Avenue NW., Room N-4456, Washington, 
DC 20210. Telephone (202) 219-4369 (this is not a toll-free number).

(Authority: 8 U.S.C. 1182(a)(5)(A); 29 U.S.C. et seq.; section 122, 
Pub. L. 101-649, 109 Stat. 4978.)

    Signed at Washington, DC, this 24 day of April, 1999.
John R. Beverly III,
Director, Employment Service.
    Directive: General Administrative Letter No. 1-97, Change 1.
    To: All Regional Administrators
    From: David Henson, Director, Office of Regional Management.
    Subject: Measures for Increasing Efficiency in the Permanent Labor 
Certification Process.
    1. Purpose. To modify previously provided procedural guidance for 
increasing efficiency in the permanent labor certification process 
under current regulations in order to handle increasing workloads with 
declining staff resources.
    2. References. 20 CFR Part 656, Technical Assistance guide (TAG) 
No. 656 Labor Certifications, and General Administration Letter (GAL) 
No. 15-95.
    3. Background. GAL 1-97 was originally issued in October 1996. The 
goal of GAL 1-97 was to increase efficiency in the permanent labor 
certification process. To accomplish this goal, the GAL promulgated 
several measures which were intended to allow speedier, more efficient 
processing of permanent cases within current regulations. In the more 
than two years of experience under GAL 1-97 the evidence indicates 
that, in general, the measures put forth in the GAL have been 
effective. In the past two years, in spite of declining staff, the 
States and Regional Offices have completed action on more cases than in 
past years when more staff were available. However, as a result of the 
settlement agreement in Lauretta V. Herman, March 5, 1999, the 
efficiency measure of having unduly restrictive job requirements 
adjudicated prior to allowing advertisements to be published is being 
removed. This change to GAL 1-97 is to remove that requirement and 
reemphasize the other measures stated in that GAL.
    This GAL should be interpreted in a manner consistent with the 
labor certification provisions of the Immigration and Nationality Act, 
Department of Labor regulations promulgated thereunder, and Board of 
Alien Labor Certification Appeals (BALCA) case law. No Notice of 
Findings (NOF) shall be issued and no labor certification denied based 
solely upon this GAL, as this GAL is not intended to substantively 
change the Department's regulations or BALCA case law for the 
adjudication of applications for labor certification.
    4. Action Required. Administrators are requested to:
    A. Provide the attached policy and procedural guidance to 
appropriate staff.
    B. Instruct alien labor certification staff to implement the 
measures for increasing efficiency and follow the procedures in 
processing permanent labor certification applications.
    C. Apply these procedures to applications when processing begins on 
or after the effective date of this GAL.
    5. Inquiries. Direct questions to the appropriate Regional 
Certifying Officer.
    6. Attachment. Increasing Efficiency in the Permanent Labor 
Certification Process.
    Expiration Date: June 30, 2001.

Increasing Efficiency in the Permanent Labor Certification Process

A. Introduction

    In order to increase efficiency, the measures below shall be 
implemented under current regulations at 20 CFR 656 by Regions and 
State Employment Security Agencies (SESAs) on May 1, 1999. These 
measures are designed to significantly reduce U.S. worker referrals on 
jobs where their background and experience indicate they are not fully 
qualified for the job's stated requirements, to reduce SESA and 
Regional Office backlogs, and to allow Regions and SESAs to handle 
increasing workloads in a timely manner with fewer staff.
    To promote consistency among Regions and SESAs, operating 
procedures have been provided for handling applications involving 
unduly restrictive job requirements, reduction in recruitment, and 
limited review processing. Depending on local situations, other 
efficiency measures may be implemented by the Regional Certifying 
Officer.

B. Measures to Increase Efficiency

1. Unduly Restrictive Job Requirements
    As stated in the regulations and Technical Assistance Guide, the 
job opportunity's requirements shall be those normally required for the 
job in the United States, unless adequately documented as arising from 
business necessity. Normal requirements for the occupation in which the 
job opportunity is included may be found in the Dictionary of 
Occupational Titles. 
2. Reduction in Recruitment Requests (RIRs)
    Regions and SESAs will encourage reduction in recruitment requests 
on applications:

--For occupations for which there is little or no availability;
--Which have no restrictive requirements;
--Which meet prevailing wage; and
--For which the employer can show adequate recruitment through sources 
normal to the occupation and industry within the previous 6 months

    RIR requests will be given expedited processing by SESAs and 
Regional Offices.

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3. Notice of Findings (NOF) Extensions
    After issuing a NOF, Certifying Officers will grant only one 
extension of time beyond the initial 35 days in which the employer can 
file a rebuttal. The extension may be granted up to 35 days. Further 
extensions will not be granted.
4. Harmless Error
    Certifying Officers will have the discretion to excuse a harmless 
error on the part of the employer to fully comply with the regulations 
if the Certifying Officer determines that the labor market was 
sufficiently tested to warrant a finding that qualified U.S. workers 
are not available for the job opportunity and employment of the alien 
will not adversely affect wages and working conditions of U.S. workers 
similarly employed. A finding of harmless error will be made by the 
Certifying Officer on a case-by-case basis and shall not set a 
precedent for another case.
5. Limited Review Processing
    Certifying Officers may work with their SESAs to set up a system to 
identify and flag applications that are ready for transmittal to the 
Region and apparently have no processing problems. Such applications 
may not have special job requirements, unusual job duties, applicant 
availability, or wage issues. Based on the recommendation of the SESA, 
such cases will generally be approved as they are received in the 
Region with minimal review. For quality control purposes, a small 
number of cases in various occupations will be randomly selected for a 
more extensive review.
6. Resume Screening
    SESA staff shall screen resumes of U.S. workers against the 
employer's job requirements regardless of whether or not they are 
considered by the SESA to be unduly restrictive. Only those resumes of 
fully qualified applicants, based on the employer's final stated 
requirements, shall be sent to the employer and to the Regional Office. 
Recruitment on the job order will cease when it is forwarded to the 
Regional Office. Late resumes may be sent to employers having similar 
job offers or returned to applicants. After the labor certification has 
been issued, resumes will be discarded. Regions shall retain resumes of 
qualified applicants when a NOF or Final Determination has been issued.
7. Standardized Recruitment
    When the Certifying Officer requires the employer, through an NOF, 
to recruit again because of deficiencies in the first recruitment, the 
employer shall be instructed to place a 1-day Sunday advertisement in 
an appropriate newspaper of general circulation. The ad must run in 
conjunction with a 10-day job order placed with the SESA. This reduced 
level of recruitment may not be used by employers who have never 
recruited for the position, or when the Certifying Officer has 
determined that a trade or professional journal is the most appropriate 
advertising medium.
8. Advertisements
    Because the SESA will not have sufficient time to review a draft ad 
once a job order has been placed, SESAs are only required to assist in 
drafting the text or reviewing a draft ad for accuracy if the ad is 
submitted with an initial or resubmitted application.
9. Applicant Questionnaires
    Because of budgetary constraints at the SESAs and Regional Offices, 
SESAs should no longer send questionnaires to U.S. workers who were 
interviewed as the result of the labor certification process.

C. Operating Procedures

1. Unduly Restrictive Job Requirements
    a. The SESA will review each permanent labor certification 
application to consider whether there may be any unduly restrictive 
requirements.
    b. The SESA will notify the employer of any potential unduly 
restrictive requirements and request the employer to either remove 
those requirement(s) or provide a business necessity justification for 
the requirement(s) in question within 45 days of the date of the 
request. If complete information is not received within 45 days, the 
application will be returned to the employer. If it is refiled, it will 
be treated as a new application with the original date of receipt 
deleted and replaced with the refiling date.
    c. The SESA will also request, as part of the business necessity 
documentation, that the employer provide documentation to show that the 
job existed and was previously filled at the same requirements before 
the alien was hired. The employer may submit documentation including 
but not limited to position descriptions, organizational charts and 
payroll records, etc. Jobs which did not exist before the alien was 
hired will be considered jobs that are not truly open to U.S. workers, 
unless the employer can clearly demonstrate that a major change in the 
business operation caused the position to be created after the alien 
was hired.
    d. After the employer responds to the State's request for further 
information regarding the requirements for the job opportunity, the 
State will then proceed to complete the processing of the application, 
including the necessary advertisement(s) and SESArch of the SESA 
applicant files.
2. Reduction in Recruitment Requests (RIRs)
    a. An employer may file a reduction in recruitment request for any 
occupation, except those listed on Schedule B, if the employer can show 
that an adequate test of the labor market has occurred at prevailing 
wages and working conditions through sources normal to the occupation 
and industry within the previous 6 months.
    b. SESAs and Certifying Officers will encourage requests for 
reduction in recruitment in occupations with little or no availability 
and in circumstances as determined by individual Certifying Officers.
    c. Upon receiving an employer's written request for a reduction in 
recruitment, the SESA shall review the application for completeness and 
determine the appropriate prevailing wage.
    d. The SESA shall return the application to the employer for 
correction and/or additional information if there are deficiencies in 
the application, such as an inadequate wage offer or restrictive job 
requirements.
    e. When there are deficiencies in the application that would have 
affected the recruitment, the SESA should advise the employer that it 
is unlikely that the Certifying Officer will approve an RIR and suggest 
that the employer recruit through the regular process. However, the 
SESA may not discourage the use of RIR nor refuse to transmit a written 
request for an RIR to the Certifying Officer.
    f. When transmitting the RIR to the Certifying Officer, the SESA 
should include a recommendation, based on its knowledge of the labor 
market, for or against granting the request.
    g. The RIR will be given expedited processing at the Region if it 
contains no deficiencies. Those with deficiencies identified by the 
SESA shall be processed in the order that they are received along with 
other applications.
    h. Among the factors to be considered by the Certifying Officer in 
making determinations on RIRs pursuant to section 20 CFR 656.24 are the 
following:

    •  Adequacy of the recruitment conducted by the employer 
applicant, e.g., newspaper advertising, job fairs, internet.

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    •  Documentation of normal recruitment practices in the 
industry and occupation furnished by the employer.
    •  Availability of U.S. workers for the occupation 
involved in the employer's application for which recruitment has 
been conducted through the SESA in the past, as shown by ES 
referrals to job orders.
    •  SESA recommendations/comments.
    •  Certifying Officer's knowledge of the local labor 
market.

    If RIR is denied because the recruitment is not acceptable, the 
application shall be returned to the SESA for regular processing in the 
order in which it is received along with other applications.
    i. If the RIR request contains deficiencies, such as inadequate 
wage offer or restrictive job requirements, the Certifying Officer 
shall issue an NOF denying the RIR and citing the deficiencies.
3. Limited Review Processing
    a. At his or her discretion, the Certifying Officer, may establish 
a process for making expedited determinations on applications based on 
the recommendations of the SESA. Such SESA recommendations must be in 
accordance with guidelines established in advance by the Certifying 
Officer.
    b. Limited review processing shall apply to applications which 
offer the prevailing wage, have no special requirements or job duties, 
do not exceed the Specific Vocational Preparation level assigned to the 
job, and have no applicant availability or a few applicants who clearly 
do not meet the job's requirements.
    c. Applications may be designated for limited review processing 
only after completion of recruitment. The SESA will assemble an 
application package for regional processing as follows and affix a 
limited review code (``LR'') to the file:

    •  One copy of the ETA 7147--State Agency Transmittal.
    •  One copy of the G-28--Notice of Appearance of Attorney.
    •  Two sets of the ETA 750, Parts A & B, Application for 
Alien Employment Certification and one backup copy of Part B.
    •  One copy of correspondence and other documentation.
    •  One copy of the SESA Job Order.
    •  One copy of the Internal Job Posting.
    •  One copy of all three Advertisements.
    •  One copy of the Recruitment Results.
    •  One copy of the Resumes.

    d. For the most part, applications which meet the limited review 
criteria will be expedited for approval when they are received in the 
Regional Office. Some applications will be randomly selected for review 
for quality control and SESA training purposes.

[FR Doc. 99-11131 Filed 5-3-99; 8:45 am]
BILLING CODE 4510-30-P