ILW.COM - the immigration portal Immigration Daily

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers

Home Page

Advanced search

Immigration Daily


RSS feed

Processing times

Immigration forms

Discussion board



Twitter feed

Immigrant Nation


CLE Workshops

Immigration books

Advertise on ILW

VIP Network


Chinese Immig. Daily


Connect to us

Make us Homepage



Immigration Daily


Chinese Immig. Daily

The leading
immigration law
publisher - over
50000 pages of free

Immigration LLC.

Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here:

< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

[Federal Register: August 3, 2001 (Volume 66, Number 150)]
[Rules and Regulations]               
[Page 40584-40590]
From the Federal Register Online via GPO Access []

Employment and Training Administration

20 CFR Part 656

RIN 1205-AB25

Labor Certification Process for the Permanent Employment of 
Aliens in the United States; Refiling of Applications

AGENCY: Employment and Training Administration, Labor.

ACTION: Final rule.
SUMMARY: The Employment and Training Administration (ETA) of the 
Department of Labor (Department or DOL) is amending its regulations 
relating to the permanent employment of aliens in the United States. 
This final rule permits employers to request, in certain circumstances, 
that any labor certification application for permanent employment in 
the United States that is filed on or before August 3, 2001, be 
processed as a reduction in recruitment request. ETA anticipates that 
the amendment will reduce the backlog of labor certification 
applications for permanent employment in State Employment Security 
Agencies (SESA's). ETA believes this measure to reduce backlogs will 
result in a variety of desirable benefits, such as a reduction in 
processing time for both new applications and those applications 
currently in the queue, and will facilitate the development and 
implementation of a new, more efficient, system for processing labor 
certification applications for permanent employment in the United 

EFFECTIVE DATE: The amendments contained in this final rule will take 
effect on September 4, 2001.

Division of Foreign Labor Certifications, Employment and Training 
Administration, 200 Constitution Avenue, NW., Room C-4318, Washington, 
DC 20210. Telephone: (202) 693-3010 (this is not a toll-free number).


[[Page 40585]]

I. Background

    Backlogs of applications for permanent alien employment 
certification have been a growing problem in ETA regional and SESA 
offices. These increasing backlogs have resulted in an increase in the 
time it takes to obtain a determination on an application for permanent 
employment in the United States.
    Recent measures to reduce backlogs in ETA's regional offices have 
met with considerable success. Consequently, ETA is now turning its 
attention to reducing the number of backlogged cases in SESA's. 
Instituting measures to reduce backlogs in SESA's without first 
reducing backlogs in regional offices would not have resulted in a 
reduction in mean processing time, because it would have merely 
resulted in transfers of backlogged applications from the SESA's to 
ETA's regional offices.
    On July 26, 2000, the Department published a Proposed Rule in the 
Federal Register soliciting comment on the proposed amendment to the 
permanent labor certification regulations.

II. Statutory Standard and Implementing Regulations

    Before the Immigration and Naturalization Service (INS) may approve 
petition requests and the Department of State may issue visas and admit 
certain immigrant aliens to work permanently in the United States, the 
Secretary of Labor must first certify to the Secretary of State and to 
the Attorney General that:
    (a) There are not sufficient United States workers, who are able, 
willing, qualified, and available at the time of the application for a 
visa and admission into the United States and at the place where the 
alien is to perform the work; and
    (b) The employment of the alien will not adversely affect the wages 
and working conditions of similarly employed United States workers. [8 
U.S.C. 1182(a)(5)(A)].
    If the Secretary, through ETA, determines that there are no able, 
willing, qualified, and available U.S. workers and that employment of 
the alien will not adversely affect the wages and working conditions of 
similarly employed U.S. workers, DOL so certifies to the INS and to the 
Department of State, by issuing a permanent alien labor certification.
    If DOL cannot make one or both of the above findings, the 
application for permanent alien employment certification is denied. DOL 
may be unable to make the two required findings for one or more 
reasons, including, but not limited to:
    (a) The employer has not adequately recruited U.S. workers for the 
job offered to the alien, or has not followed the proper procedural 
steps in 20 CFR part 656.
    (b) The employer has not met its burden of proof under section 291 
of the Immigration and Nationality Act (INA or Act.) (8 U.S.C. 1361), 
that is, the employer has not submitted sufficient evidence of its 
attempts to obtain available U.S. workers, and/or the employer has not 
submitted sufficient evidence that the wages and working conditions 
which the employer is offering will not adversely affect the wages and 
working conditions of similarly employed U.S. workers.

III. Department of Labor Regulations

    The Department of Labor has promulgated regulations, at 20 CFR part 
656, governing the labor certification process described above for the 
permanent employment of immigrant aliens in the United States. Part 656 
was promulgated pursuant to section 212(a)(14) of the INA (now at 
section 212(a)(5)(A)). 8 U.S.C. 1182(a)(5)(A).
    The regulations at 20 CFR part 656 set forth the fact-finding 
process designed to develop information sufficient to support the 
granting of a permanent labor certification. These regulations describe 
the nationwide system of public employment service offices available to 
assist employers in finding available U.S. workers and how the fact-
finding process is utilized by DOL as the basis of information for the 
certification determination. See also 20 CFR parts 651 through 658, and 
the Wagner-Peyser Act (29 U.S.C. Chapter 4B).
    Part 656 also sets forth the responsibilities of employers who 
desire to employ immigrant aliens permanently in the United States. 
Such employers are required to demonstrate that they have attempted to 
recruit U.S. workers through advertising, through the Federal-State 
Employment Service System, and by other specified means. The purpose is 
to assure that there is an adequate test of the availability of U.S. 
workers to perform the work, and to ensure that aliens are not employed 
under conditions that would adversely affect the wages and working 
conditions of similarly employed U.S. workers.

IV. Reduction in Recruitment Requests

    On October 1, 1996, because of the increasing workloads, ETA issued 
General Administrative Letter No. 1-97, Measures for Increasing 
Efficiency in the Permanent Labor Certification Process (GAL 1-97). The 
GAL instituted a number of measures to increase efficiency which were 
achievable under current regulations. One of the measures to increase 
efficiency was to encourage employers to file requests for a reduction 
in recruitment (RIR) under Sec. 656.21(i) of the permanent labor 
certification regulations. Requests for RIR processing are given 
expedited processing at ETA's regional offices. The RIR provision 
allows certifying officers to reduce partially or completely the 
employer's recruitment efforts through the SESA's, for example, by 
decreasing or eliminating the number of days which the job order and/or 
ad must be run. The notice requirement at Sec. 656.20(g) can be reduced 
partially, but it cannot be eliminated, since it is based on a 
statutory requirement. See Immigration Act of 1990, Pub. L. 101-649, 
sec. 122 (b) (Nov. 29 1990).
    The RIR provision may be utilized by certifying officers when the 
labor market has been adequately tested within 6 months prior to the 
filing of the application and there is no expectation that full or 
partial compliance with the prescribed recruitment measures will 
produce qualified and willing applicants.
    The emphasis on the use of RIR has worked well and has contributed 
significantly to ETA being able to manage its increasing case load with 
limited staff resources. Backlogs in both the regional offices and 
SESA's would undoubtedly be substantially larger if the use of RIR had 
not been encouraged by GAL 1-97.
    ETA has concluded that backlogs in SESA's could be substantially 
reduced if employers are allowed to have applications that were not 
originally filed as RIR cases and which meet the appropriate criteria 
removed from the SESA's processing queues and processed as RIR cases. 
Furthermore, reducing or eliminating the backlogs would facilitate the 
implementation of a new permanent employment certification system that 
ETA has been developing.
    This regulatory change does not change any of the substantive 
requirements for getting an RIR application certified nor does it 
materially diminish any of the protections afforded U.S. workers. It 
merely permits employers to request that applications filed under the 
basic labor certification process be converted to RIR processing 
without losing their original filing date. As explained in the Proposed 
Rule, the filing date is important to employers because, according to 
INS regulations, ``[t]he priority date of any petition for 
classification under section 203(b) of the

[[Page 40586]]

Act which is accompanied by an individual labor certification from the 
Department of Labor shall be the date the request for certification was 
accepted for processing by any office within the employment service 
system.'' See 8 CFR 204.5(d). Currently, employers with cases in the 
queue which could qualify for RIR processing are reluctant to make such 
requests since, under current regulations, that would result in a loss 
of their original filing date which, in turn, would result in a loss of 
the alien's visa priority date. This is a serious disincentive for many 
employers where the alien beneficiary comes from a country where the 
visa numbers are backlogged. Therefore, the Department is taking this 
action to permit qualified applications to be converted to RIR 
processing with no loss of filing date.

V. Analysis of Comments on the July 26, 2000 Proposed Rule

    To obtain public input to assist in the development of final 
regulations, the Department published a proposed rule in the Federal 
Register on July 26, 2000, and invited public comment. In the 
development of this final rule the Department has carefully considered 
the comments received in response to the proposed rule.
    The proposed rule elicited 12 comments, including one from the 
American Immigration Lawyers Association (AILA), one from the American 
Council on International Personnel, Inc. (ACIP), one from the 
Federation for American Immigration Reform (FAIR), one from a SESA, and 
eight from members of the general public. AILA and ACIP generally 
supported the Department's proposal and submitted comments that are 
primarily procedural in nature. FAIR opposes implementation of the 
proposal unless such implementation were to be coupled with what FAIR 
describes as adequate worker protections. The SESA supports the 
Department's efforts to reduce case backlogs in SESA processing queues 
but does not believe that the proposal will have any significant effect 
towards that end. Of the eight members of the general public submitting 
comments, two took a neutral position on the proposal but recommended 
further clarification concerning precisely when an application becomes 
ineligible for conversion, and the other six were generally supportive 
of the proposal but requested that it be broadened to allow an even 
larger number of applications to qualify. These comments are discussed 
in further detail below.

A. Timing of RIR Conversion Requests

    Eight commenters addressed issues concerning the timing of an 
employer's request for an RIR conversion and when an application 
becomes ineligible for such a conversion. Of these eight commenters, 
some simply requested clarification of the Department's position while 
several others recommended specific outcomes. The proposed rule stated 

[The] amendment to the RIR regulation at 20 CFR 656.21(i) would 
allow an employer to file a request to have an application filed on 
or before July 26, 2000, which has not been sent to the regional 
office, processed as a RIR request under Sec. 656.21(i), provided 
that recruitment has not been conducted pursuant to Secs. 656.21(f) 
and/or (g).

    ACIP recommended that the rule should be modified to permit 
conversion at any time prior to the time that results of recruitment 
must be submitted to the SESA and provided specific regulatory text as 
part of its comments that it asserts would achieve that result. Several 
commenters questioned whether the RIR conversion procedures will be 
available to employers that initially filed RIR applications that were 
subsequently remanded back to the State agency for lack of adequate 
advertising in order to engage in the recruitment efforts required 
under the basic labor certification process. Others questioned whether 
applications that have been forwarded to the Regional office prior to 
recruitment to resolve issues such as a challenge to the SESA 
prevailing wage determination are eligible for RIR conversion. Two 
members of the general public requested clarification as to whether the 
proposed amendment's language limiting RIR conversion eligibility to 
those applications for which ``recruitment has not yet been conducted 
pursuant to paragraphs (f) and/or (g) of [Sec. 656.21]'' refers to both 
the paragraph in section (f) concerning SESA requests for employers to 
make corrections to applications prior to the commencement of 
recruitment activities, and the paragraph in section (g) concerning 
print advertisements. One member of the general public suggested that 
applications should be eligible for RIR conversion provided that they 
are submitted with adequate evidence of advertising prior to any 
``significant correspondence'' having been sent by the SESA to the 
employer. Another requested that, at the very least, the regulation 
should say that RIR conversion is only permitted where recruitment has 
not yet been requested by the SESA, so that a failure to place a timely 
advertisement would not be rewarded for some cases with permission to 
process the case as an RIR and considered grounds for inactivating 
other cases because the employer didn't ask for an RIR conversion. 
Lastly, two other members of the general public stated their belief 
that RIR conversions should be permitted even if recruitment under the 
basic process has been completed.
    The Department has carefully considered the various options 
suggested by commenters and has determined that the best result would 
be to adopt a bright-line test for a cutoff date for RIR eligibility. 
The Department believes that the use of such a standard will clear up 
the confusion that has been expressed by commenters. Towards that end, 
this Final Rule provides that an employer may request an RIR conversion 
up until the point that the SESA has placed the job order pursuant to 
Sec. 656.21(f)(1). The date of the job order's placement shall be 
determinative in evaluating whether an RIR conversion request may be 
granted by the certifying officer.
    As noted in the Proposed Rule, since the RIR procedures were 
designed to expedite processing by permitting employers to substitute 
recruiting conducted prior to filing the application for the recruiting 
required by Sec. 656.21, it would be incongruous to entertain an RIR 
request from an employer who had already commenced the mandated 
recruiting. The Department simply cannot ignore any potential 
availability of U.S. applicants and believes such applications should 
be approved or denied based upon those recruitment efforts.
    In response to commenters who questioned whether RIR is still 
permitted where corrections are needed, the Department believes that 
applications may still be converted to RIR processing if changes are 
needed and the SESA so notifies the employer. Consistent with GAL 1-97, 
the SESA should resolve any items that need to be corrected prior to 
transmitting the application to the certifying officer. GAL 1-97 
further provides that where there are deficiencies that would have 
affected the recruitment, the SESA should advise the employer that it 
is unlikely that the certifying officer will approve the RIR and 
suggest that the employer continue to pursue its application under the 
basic labor certification process. However, the SESA should not use the 
fact that corrections are necessary as a means to thwart an employer's 
legitimate efforts to convert an application to the RIR process.

[[Page 40587]]

    Questions were also raised with respect to applications that have 
been forwarded to the regional office prior to recruitment and whether 
they may also be eligible for RIR conversion. As far as the Department 
can determine there is a relatively small number of cases that are now 
in regional office queues for which no recruiting has yet to occur. If 
the certifying officer remands such applications back to State agencies 
for further processing, the final rule permits RIR conversion requests 
provided that the application was initially filed prior to August 3, 
2001. The Department, however, rejects AILA's suggestion that the 
regulation be revised to allow RIR to be requested in these cases by 
filing conversion requests directly with the regional certifying 
officer. Section 656.21(i)(1) provides that the employer shall file its 
written request for RIR processing at the appropriate Job Service 
office. The Proposed Rule did not contemplate changing the basic 
structure of the RIR processing procedures which require that the 
employer request for RIR processing be submitted to the SESA having 
jurisdiction over the area of intended employment. We believe that 
orderly processing dictates that all such requests be filed with the 
SESA, whether the request is submitted with the application initially, 
or when submitted to the SESA under the RIR conversion procedures set 
forth in this final rule. Lastly, the Department does not believe that 
there are a large enough number of pre-recruitment cases in regional 
office queues for the amendment to have much of a beneficial effect on 
State agency backlogs. There appears to be such a small number of 
applications that could conceivably benefit from the suggested 
amendment that the Department does not believe such changes to the 
regulations governing RIR processing are warranted.
    A member of the general public asserted that once the RIR 
conversion procedures have been implemented there will be employers 
requesting State agencies to hold up advertising on an application 
until the employer has had adequate time to conduct the recruitment 
activities and/or to gather evidence that will support a future RIR 
conversion request. We are mindful of this possibility. We are also 
concerned about the administrative complexities of keeping track of 
such cases. On the other hand, it is our objective to use RIR 
processing to the maximum extent possible. Therefore, the Department 
intends to explore this issue with the regional certifying officers and 
SESA's responsible for administering the labor certification program.

B. RIR Conversion Procedures

    Eight commenters stressed a need for very clear guidelines that 
will specify the procedures to be followed with respect to RIR 
conversion requests by employers, SESA's, and regional offices. AILA 
suggested two potential procedures; one for situations in which 
amendments to the application are necessary, and one for applications 
for which no amendments are required. ACIP suggested similar procedures 
that differ only to the extent that they presuppose the need for a new 
part A of Form ETA 750. FAIR offered its view that employers who 
convert applications to RIR status should not be allowed to make any 
changes in the job duties or requirements and suggested that to do so 
would present yet another opportunity to ``game the system.'' Four 
members of the general public requested that the Department process 
converted RIR applications expeditiously since the priority dates of 
such cases are much older than RIR applications currently being 
    The Department agrees with the majority of commenters that ETA must 
offer clear guidelines to SESA's and regional offices on how RIR 
conversion requests are to be processed. The Department does not, 
however, accept ACIP's blanket assumption that a new part A of Form ETA 
750 will be required in all situations where applications are converted 
to RIR processing as a result of this regulatory change. We also reject 
FAIR's suggestion that no amendments to such applications be permitted. 
Many of these applications, especially those in high-volume SESA's, 
have been in the queue for extended periods of time. Therefore, it is 
to be expected that there may be a need to make changes to the job 
opportunity and/or increase the rate of pay offered due to an increased 
prevailing wage rate applicable to the occupation and area or, in many 
cases, an increase in the employer's own pay scale. With respect to 
changes in the content of labor certification applications, the 
Department did not intend in offering the proposed amendment to change 
the long standing procedures for handling such requests. If the duties 
and requirements of the job offer are changed to such an extent that it 
becomes a new job opportunity, the application would need to be refiled 
with the State agency as a new application. However, minor changes such 
as an increased wage offer or slightly different job duties are 
permitted as long as it remains essentially the same job opportunity.
    While the Department agrees with the general thrust of AILA's 
suggestions regarding the procedures to be followed, we do not believe 
it is prudent to put such explicit guidance in the regulations. Rather, 
this preamble will serve to clarify the Department's intent. When a 
written request for conversion is received by the SESA, the request 
letter and supporting documentation will be added to the case file and 
the application will be removed from the regular labor certification 
application queue and placed in the RIR queue. If operating experience 
indicates that further guidance is needed ETA will issue to the SESA's 
and regional offices a policy directive outlining in further detail the 
procedures to be followed in adjudicating such requests.
    In dealing with applications that do not require amendments, ETA 
envisions that the procedures will operate consistent with the preamble 
to the proposed rule which stated:

    The proposed regulation also provides that for the request to 
have a previously filed application processed as an RIR request it 
must be accompanied by documentary evidence of good faith 
recruitment conducted within the 6 months immediately preceding the 
date of the request.

    With respect to applications for which amendments are required, 
such as an increase in the rate of pay offered or a change of address, 
ETA has concluded that amendments can be handled in the same fashion as 
they are currently handled by employers making the amendments directly 
on the form and initialing the changes. To the extent employers 
currently make their amendments by letter or by submitting a new 
application form, those procedures will continue to be followed.
    In response to comments suggesting that converted RIR applications 
be processed expeditiously since the priority dates are older than RIR 
applications currently being processed, GAL 1-97 provides that RIR 
applications are to be given expedited processing unless they contain 
deficiencies. However, converted RIR applications will not be processed 
any differently than applications that were initially filed under the 
RIR provisions of the regulations. Such applications will continue to 
be processed by regional offices along with other RIR requests in the 
order in which they are received.
    Finally, ACIP recommended that the final rule include a requirement 
that the agency notify the petitioner within a reasonable period of 
time after filing for conversion on whether the labor certification 
application has, in fact, been converted to RIR processing. The

[[Page 40588]]

Department does not believe it is appropriate that any special rules be 
implemented regarding notification with respect to RIR conversion 
determinations. Furthermore, generally all requests for conversion to 
RIR processing will be granted. Only where the occupation listed in the 
application is on Schedule B, or the request is not timely, would the 
employer request for conversion to RIR processing be denied. The 
Department agrees that notification of action on a particular 
application should be provided in the normal course of business but we 
reject the suggestion to place a time limit in the regulation. 
Processing cases under the RIR procedures is virtually always 
accomplished in considerably less time than processing cases under the 
non-RIR basic process.

C. Initial Filing Date Eligibility

    AILA suggested that the cutoff date for RIR conversion eligibility 
should be revised to occur on the date a final or interim final rule is 
published. In the Proposed Rule, the Department stated that the 
proposed regulation would allow employers to request that a permanent 
labor certification application be processed as an RIR request only if 
the initial application was filed on or before July 26, 2000, the date 
of publication. As stated in the proposed rule, ETA's operating 
experience indicates that without such a limitation, employers may be 
motivated to file large numbers of cases, many of which may be 
inadequately prepared, simply to obtain a filing date and then convert 
such cases to RIR processing. This outcome would undermine the primary 
purposes of the proposed regulatory revision to reduce backlogs of 
existing cases in State agency processing queues and to facilitate the 
orderly transition to a new streamlined labor certification system.
    In its comments, AILA said that, while it understood the 
Department's desire to avoid an onslaught of filings in anticipation of 
the regulation, it felt that the problem could as readily be avoided by 
using the publication date of the final or interim final regulation. 
AILA further asserted that the later date would provide no lead time to 
file applications under old procedures to take advantage of new 
procedures, but would enable the Department to consider as many cases 
as possible in this new, efficiency-improving, procedure.
    The Department agrees with AILA's comments. While we continue to 
believe that the regulation must contain some time limitation with 
respect to which applications are eligible for conversion to RIR 
processing, we agree that adopting the date of publication of this 
final rule as the cutoff date, as opposed to the date the proposed rule 
was published, will better serve the interests of the regulated 
community by expanding the pool of eligible applications without 
materially diminishing significant protections afforded U.S. workers. 
Moreover, as noted by AILA, adopting as the cutoff the date of 
publication of this final rule will just as readily prevent the filing 
of large numbers of inadequately prepared applications. Accordingly, 
this final rule provides that the option to request that a permanent 
labor certification application be converted to RIR processing applies 
only to applications that were initially filed on or before August 3, 

D. Justification for Regulatory Change

    One commenter, FAIR, strongly asserted that the Department did not 
have the authority to rely on ``efficiency in processing'' as a 
permissible basis to impose what it calls ``sweeping changes to the 
permanent alien labor certification program implicit in the proposed 
regulation.'' FAIR states that the changes conflict with the plain 
meaning of 8 U.S.C. 1182(a)(5)(A), the statutory provisions that form 
the basis for the permanent labor certification program. Further, FAIR 
avers that past cutbacks in federal funding for administration of the 
alien labor certification program are not a rational basis for the 
proposed regulation and that pending labor certification applications 
are already at acceptable levels and continue to decline. FAIR also 
contended that reports of an increased incidence of suspect 
applications support a limitation of RIR and RIR conversion to routine, 
fully-compliant, applications, and that applications filed under the 
provisions of Sec. 245(i) \1\ of the INA are inherently suspect and 
should not benefit from relaxed scrutiny under RIR processing. FAIR 
generally opposes the conversion of alien labor certification 
applications to RIR status unless adequate worker protections are 
included. Toward that end, FAIR suggests that, should the Department 
decide that the RIR conversion proposal must go forward despite its 
opposition, it should include seven specific U.S. worker protections 
that it recommended in its comments on the proposed amendment.

    \1\ Section 245(i) of the Immigration and Nationality Act 
allowed individuals who entered the United States legally, and 
otherwise qualified for permanent resident status, to complete 
processing for their green cards in the United States, whether or 
not they violated their status or overstayed a temporary visa, by 
paying a fee of $1,000. After months of debate over whether to 
extend or terminate Section 245(i), Congress compromised on a 
provision that allowed individuals to apply for permanent residence 
within the United States under the section so long as an application 
for an alien labor certification was filed on the individual's 
behalf by January 14, 1998. This provision was recently reenacted to 
extend through April 30, 2001.

    The Department views the majority of FAIR's comments and 
suggestions as general objections to the operation of the RIR 
provisions contained in the regulations governing the permanent labor 
certification program. Neither the proposed rule nor this final rule 
are or were designed to alter the general procedures applicable to the 
adjudication of RIR applications. At this time, the Department is not 
entertaining comments that apply to RIR processing generally as such 
comments are not within the scope of this rulemaking.
    The Department also does not believe the proposed amendment in any 
way conflicts with the statutory provisions governing the permanent 
labor certification program. The RIR provisions have been in the 
Department's regulations in one form or another since 1977, and in 
their present form since 1981. The proposed amendment is simply a 
housekeeping rule to permit otherwise eligible applications to be 
processed as RIR applications even though they do not meet the current 
procedural requirement that the recruitment must have been conducted 
prior to filing the application. Every application for which RIR 
conversion will occur as a result of this rule could always have been 
withdrawn by the employer and re-filed as an RIR application. This rule 
merely permits such employers to convert their cases to RIR processing 
without the need to withdraw the existing application filed under the 
basic process. In so doing, the proposed amendment would permit an 
employer to convert to RIR processing while at the same time allowing 
them to retain their original filing date. After converting an 
application to RIR processing as a result of this final rule, the 
employer will still have to meet all of the long-standing regulatory 
criteria applicable to RIR requests and ETA policy directives issued 
thereunder, such as GAL 1-97.
    With respect to FAIR's comments that pending alien labor 
certification applications are already at acceptable levels and 
continue to decline, the Department simply cannot agree. The number of 
labor certification applications in State agency processing queues 
still remains unacceptably high and the time it takes to process them 
remains unacceptably long. Any backlog of applications, regardless of 
the level, stands to hinder the smooth transition

[[Page 40589]]

to the new, more streamlined, permanent labor certification program. 
Further, as we work to transition to the new system, SESA's simply must 
clear up their existing backlog of applications in their entirety for, 
under the new system, SESA's will no longer be funded for processing 
such applications.
    FAIR also contends that applications initially filed under Section 
245(i) of the INA are inherently suspect and should not benefit from 
relaxed scrutiny under the RIR provisions of the regulations. The 
Department believes that no specific application, nor any specific 
occupation, is inherently deserving of favorable treatment on requests 
to grant an RIR. Similarly, no application or occupation is inherently 
ineligible, with the exception of those occupations listed on Schedule 
B, which are specifically precluded from consideration under RIR 
processing procedures by Sec. 656.21(i) of the regulations governing 
the permanent labor certification program. Moreover, there simply is no 
readily identifiable means to determine those applications that have 
been filed on behalf of beneficiaries who will seek at some future date 
to exercise their grand-fathered benefits under section 245(i) of the 
INA. Just because an application may have been filed on or before 
January 14, 1998, the original cutoff date for eligibility under 
section 245(i), is by no means determinative in evaluating whether a 
particular alien beneficiary actually intends to exercise their rights 
under that section. Further, GAL 1-97 makes clear that to be eligible 
for RIR processing, the application cannot contain deficiencies such as 
unduly restrictive job requirements.
    One additional comment concerning the general justification for the 
regulatory change was submitted by the SESA, in which they observed 
that reducing the backlog is not simply a matter of allowing RIR 
processing. They are of the belief that many of the applications in the 
queue require additional handling to resolve issues prior to beginning 
recruitment or being forwarded to the regional office for 
certification. The Department is aware that this regulatory change is 
not a panacea and that some level of backlogged applications will 
continue to exist. The Department agrees that a number of applications 
in State agency processing queues contain deficiencies and are thus 
inappropriate for an RIR conversion.

E. Other Issues

    Some commenters addressed other issues that arise under the 
permanent labor certification program in general without any direct 
bearing on the proposed amendment, and as such, fall outside the scope 
of this rulemaking. ACIP firmly stated that the final promulgation of 
this regulation should in no way disrupt or delay processing of 
traditionally filed labor certification applications that are not 
converted to RIR processing. The SESA recommended that to reduce 
ongoing and future backlogs and speed up the application process, the 
Department should propose an amendment to the list of Schedule A 
occupations to include others for which there exists a short supply of 
U.S. workers. Specifically, they suggested that electrical and 
electronic engineers, software engineers, computer programmers, systems 
analysts, and foreign specialty cooks, be added to the Schedule A list 
of occupations.
    In response to ACIP's concerns regarding the impact of the proposed 
amendment on processing times for labor certification applications 
filed under the basic process, administrative decisions as to how 
resources are allocated are outside the scope of this rulemaking. 
However, ETA anticipates that State agencies and regional offices will 
continue to process both RIR and non-RIR cases simultaneously. Backlogs 
have been declining for both classes of cases. The SESA's suggestion to 
put additional occupations on the Schedule A list is also outside the 
scope of this rulemaking. As noted above, the proposed amendment is 
simply a housekeeping rule to permit otherwise eligible applications to 
be processed as RIR applications even though they do not meet the 
current procedural requirement that the recruitment must have been 
conducted prior to filing the application.

Executive Order 12866

    The Department has determined that this Final Rule is not an 
``economically significant regulatory action'' within the meaning of 
Executive Order 12866, in that it will not have an economic effect on 
the economy of $100 million or more or adversely affect in a material 
way the economy, a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local or 
tribal governments or communities.
    While it is not economically significant, the Office of Management 
and Budget reviewed the final rule because of the novel legal and 
policy issues raised by this rulemaking.

Regulatory Flexibility Act

    This final rule only affects those employers seeking immigrant 
workers for permanent employment in the United States. The Department 
of Labor has notified the Chief Counsel for Advocacy, Small Business 
Administration, and made the certification pursuant to the Regulatory 
Flexibility Act at 5 U.S.C. 605(b), that the rule will not have a 
significant economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any 1 year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions are deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 

Small Business Regulatory Enforcement Fairness Act of 1996

    This final rule is not a major rule as defined by section 804 of 
the Small Business Regulatory Enforcement Act of 1996. It will not 
result in an annual effect on the economy of $100 million or more; a 
major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Executive Order 13132

    This final rule will not have a substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a summary impact 

Assessment of Federal Regulations and Policies on Families

    This final rule does not affect family well-being.

Paperwork Reduction Act

    The rule does not modify the existing collection of information 
requirements in 20 CFR 656.21.

Catalogue of Federal Domestic Assistance Number

    This program is listed in the Catalogue of Federal Domestic 
Assistance at Number

[[Page 40590]]

17.203, ``Certification for Immigrant Workers.''

List of Subjects in 20 CFR 656

    Administrative practice and procedure, Aliens, Crewmembers, 
Employment, Employment and training, Enforcement, Fraud, Guam, 
Immigration, Labor, Longshore work, Unemployment, Wages and working 

Final Rule

    Accordingly, part 656 of chapter V of title 20 of the Code of 
Federal Regulations is amended as follows:


    1. The authority citations for Part 656 is revised to read as 

    Authority: 8 U.S.C. 1182(a)(5)(A) and 1182(p); 29 U.S.C. 49 et 
seq.; sec.122, Pub. L. 101-649, 109 Stat. 4978.

Sec. 656.21  [Amended]

    2. Section 656.21 is amended by adding a new paragraph (i)(6), to 
read as follows:

Sec. 656.21  Basic labor certification process.

* * * * *
    (i) * * *
    (6) Notwithstanding the provisions of paragraph (i)(1)(i) of this 
section, an employer may file a request with the SESA to have any 
application filed on or before August 3, 2001, processed as a reduction 
in recruitment request under this paragraph (i), provided that 
recruitment efforts have not been commenced pursuant to paragraph 
656.21(f)(1) of this section.
* * * * *

    Signed at Washington, DC, this 30th day of July, 2001.
Raymond J. Uhalde,
Deputy Assistant Secretary.
[FR Doc. 01-19465 Filed 8-2-01; 8:45 am]

Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here: