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


[Federal Register: July 21, 2004 (Volume 69, Number 139)]
[Rules and Regulations]               
[Page 43715-43719]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21jy04-16]                         


[[Page 43715]]

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Part V





Department of Labor





-----------------------------------------------------------------------



Employment and Training Administration



-----------------------------------------------------------------------



20 CFR Part 656



Labor Certification for the Permanent Employment of Aliens in the 
United States; Backlog Reduction; Interim Final Rule


[[Page 43716]]


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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 656

RIN 1205-AB37

 
Labor Certification for the Permanent Employment of Aliens in the 
United States; Backlog Reduction

AGENCY: Employment and Training Administration, Labor.

ACTION: Interim final rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: The Employment and Training Administration (ETA) of the 
Department of Labor (Department or DOL) is issuing this interim final 
rule to address an existing backlog in pending applications for labor 
certification for the permanent employment of aliens in the United 
States. This amendment to the regulations governing labor certification 
applications for permanent employment will allow the National 
Certifying Officer to transfer to a centralized ETA processing 
center(s) applications now awaiting processing by State Workforce 
Agencies (SWAs) or ETA Regional Offices. This interim final rule does 
not affect the pending proposal to streamline procedures for permanent 
labor certification under 20 CFR part 656, which was published in the 
Federal Register of May 6, 2002, and which is expected to be finalized 
in 2004. This interim final rule affects only applications filed under 
existing regulations, while the streamlined certification regulation 
will govern processing of new applications filed after that regulation 
takes effect.

DATES: This interim final rule is effective August 20, 2004. Interested 
persons are invited to submit written comments on this interim final 
rule. To ensure consideration, comments must be received on or before 
August 20, 2004.

ADDRESSES: You may submit comments, identified by Regulatory 
Information Number (RIN) 1205-AB37, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 

Follow the website instructions for submitting comments.
     E-mail: Comments may be submitted by e-mail to 
blrcomments@dol.gov. Include RIN 1205-AB37 in the subject line of the 

message.
     Mail: Submit written comments to the Assistant Secretary 
for Employment and Training Administration, U.S. Department of Labor, 
200 Constitution Avenue, NW., Room C-4312, Washington, DC 20210, 
Attention: William Carlson, Chief, Division of Foreign Labor 
Certification. Because of security measures, mail directed to 
Washington, DC is sometimes delayed. We will only consider comments 
postmarked by the U.S. Postal Service or other delivery service on or 
before the deadline for comments.
    Instructions: All submissions received must include the RIN 1205-
AB37 for this rulemaking. Receipt of submissions, whether by U.S. mail 
or e-mail will not be acknowledged. Because DOL continues to experience 
delays in receiving postal mail in the Washington, DC area, commenters 
are encouraged to submit any comments by mail early.
    Comments will be available for public inspection during normal 
business hours at the address listed above for mailed comments. Persons 
who need assistance to review the comments will be provided with 
appropriate aids such as readers or print magnifiers. Copies of this 
interim final rule may be obtained in alternative formats (e.g., large 
print, Braille, audiotape, or disk) upon request. To schedule an 
appointment to review the comments and/or to obtain the proposed rule 
in an alternative format, contact the Division of Foreign Labor 
Certification at 202-693-3010 (this is not a toll-free number).

FOR FURTHER INFORMATION CONTACT: Contact Denis Gruskin, Senior 
Specialist, Division of Foreign Labor Certification, Employment and 
Training Administration, 200 Constitution Avenue, NW., Room C-4312, 
Washington, DC 20210; Telephone: (202) 693-2953 (this is not a toll-
free number).
    Individuals with hearing or speech impairments may access the 
telephone numbers above via TTY by calling the toll-free Federal 
Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: 

I. Statutory Standard

    Before the United States Citizenship and Immigration Services (CIS) 
of the Department of Homeland Security \1\ 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 first must certify to the Secretary of State and to 
the Secretary of Homeland Security that:
---------------------------------------------------------------------------

    \1\ See 6 U.S.C. 236(b), 552(d), and 557.
---------------------------------------------------------------------------

    (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. See 
Immigration and Nationality Act (INA), 8 U.S.C. 1182(a)(5)(A).
    If the Secretary of Labor, 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 CIS 
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.

II. Current Department of Labor Regulations

    DOL has promulgated regulations, at 20 CFR part 656, governing the 
labor certification process for the permanent employment of immigrant 
aliens in the United States. Part 656 was promulgated under section 
212(a)(5)(A) of the INA. 8 U.S.C. 1182(a)(5)(A).
    Part 656 sets forth the responsibilities of employers who desire to 
employ immigrant aliens permanently in the United States. Under current 
regulations, employers file an ``Application for Alien Employment 
Certification'' with the State Workforce Agency (SWA) serving the area 
of intended employment. The SWA is responsible for various processing 
steps, including date stamping the application, calculating the 
appropriate prevailing wage, and placing the job opening into the 
state's employment recruitment system.
    The current process for obtaining a labor certification requires 
employers to actively recruit U.S. workers in good faith for a period 
of at least 30 days for the job openings for which aliens are sought. 
The employer's job requirements must conform to the regulatory 
standards.
    Job applicants either are referred directly to the employer or 
their resumes are sent to the employer. The employer has 45 days to 
report to the SWA the lawful job-related reasons for not hiring any 
referred U.S. worker. If the employer hires a U.S. worker for the job 
opening, the process stops at that point, unless the employer has more 
than one opening, in which case the application may continue to be 
processed. If, however, the SWA

[[Page 43717]]

believes that able, willing, and qualified U.S. workers are not 
available to take the job, the application, together with the 
documentation of the recruitment results and prevailing wage 
information, is sent to the appropriate ETA Regional Office. There, it 
is reviewed and a determination made as to whether to issue the labor 
certification based upon the employer's compliance with program 
regulations. If DOL/ETA determines that there is no able, willing, 
qualified, and available U.S. worker, and that the employment of the 
alien will not adversely affect the wages and working conditions of 
similarly employed U.S. workers, DOL/ETA so certifies to the CIS and 
the Department of State by issuing a permanent labor certification. See 
20 CFR part 656; see also section 212(a)(5)(A) of the INA, as amended.
    On May 6, 2002, the Department published a Notice of Proposed 
Rulemaking (NPRM) to substantially streamline part 656, which governs 
the permanent labor certification program. The proposed streamlined 
certification regulation, which is expected to be finalized in 2004, 
will ``implement a new system for filing and processing'' permanent 
labor certification applications. Among other things, State Workforce 
Agencies will no longer receive or process applications as they do 
under the current system, and employers will be required to conduct 
recruitment before filing applications. The new processing system will 
apply to all applications for permanent labor certifications filed on 
or after the revised regulation's effective date.
    The interim final rule in this document does not alter the separate 
streamlined certification regulation, but rather is focused on 
reduction of the backlog of labor certification applications filed 
under existing regulations with State Workforce Agencies, as described 
in the next section. The streamlined certification regulation, once 
finalized, will stabilize the backlog volume, since applications will 
no longer be filed with a SWA on or after that regulation's effective 
date and streamlined procedures will govern.

III. Background

    ETA's Permanent Labor Certification Program is currently 
experiencing an enormous backlog in pending applications for permanent 
employment of alien immigrants. This backlog largely stems from 
amendments enacted in December 2000 to section 245(i) of the INA. The 
amendments allow aliens who entered the United States without 
inspection or who fall within certain statutory categories to adjust 
their status to that of a lawful permanent resident if a labor 
certification application was filed on their behalf with a SWA on or 
before April 30, 2001. See 8 U.S.C. 1255(i)(1)(B)(ii). We estimate that 
approximately 236,000 applications were filed to meet the deadline of 
April 30, 2001, at a time when less than 100,000 applications were 
filed in an entire year. At the start of April 2003, over 280,000 
permanent labor certification applications were in the SWA processing 
queues throughout the nation, with another 30,000 applications in the 
various ETA Regional Office queues.
    To address the backlog, ETA funded a study to identify strategic 
options and estimate costs. The study recommended establishing 
centralized processing centers to achieve the economies of scale 
inherent in processing large numbers of applications in one location 
and in consolidating the functions currently performed separately by 
the SWAs and the ETA Regional Offices. Building upon this 
recommendation, ETA initiated a pilot program testing the feasibility 
of centralized processing, which indicated that substantial time and 
economic savings could be achieved.
    Accordingly, this interim final rule amends part 656 by adding a 
new section 656.24a to provide that the National Certifying Officer 
(Chief, Division of Foreign Labor Certification) has the discretion to 
direct SWAs and ETA Regional Offices to transfer pending labor 
certification applications to centralized processing centers for 
completion of processing. The centralized processing centers will 
perform the required functions of the SWAs and ETA Regional Certifying 
Officers, consolidating steps now performed separately by the SWAs and 
the ETA Regional Offices to achieve efficiencies and economies of 
scale. The Chief will issue a directive to SWAs and the ETA Regional 
Offices stating how pending applications are to be identified for 
centralized processing, and where they are to be sent. The extent of 
centralized processing and the speed with which the current backlog 
will be reduced may vary based upon program priorities.

IV. Administrative Information

    Executive Order 12866--Regulatory Planning and Review: We have 
determined that this interim final rule is not an ``economically 
significant regulatory action'' within the meaning of Executive Order 
12866. The procedures for backlog reduction will not have an economic 
impact of $100 million or more because they will not add to or change 
requirements for employers applying for permanent labor certification, 
but rather create a means for consolidated processing at centralized 
locations. While it is not economically significant, the Office of 
Management and Budget (OMB) reviewed this interim final rule because of 
the novel legal and policy issues raised by this rulemaking.
    Regulatory Flexibility Act: We have notified the Chief Counsel for 
Advocacy, Small Business Administration, and made the certification 
pursuant to the Regulatory Flexibility Act (RFA) at 5 U.S.C. 605(b), 
that this interim final rule will not have a significant economic 
impact on a substantial number of small entities.
    The factual basis for that certification is as follows: The interim 
final rule will affect only a portion of those employers whose 
applications for permanent employment certification are among the 
approximately 310,000 currently backlogged applications, or who file an 
application prior to the effective date of the regulations streamlining 
permanent labor certification. The interim final rule will not add to 
or change paperwork requirements for employer applicants, including 
small entities, but rather create a means for consolidated processing 
at centralized locations. Consequently, the Department believes there 
will be no additional economic burden on employer applicants, including 
small entities within that group. However, even assuming some impact on 
employers from the proposed changes, this impact will not fall ``on a 
substantial number of small entities.'' As noted, the universe of 
pending applications is approximately 310,000. Based on Department 
experience, we estimate that about forty percent of permanent labor 
certification applications are filed by employers who have submitted 
multiple applications. Thus, the number of different employers 
submitting applications is approximately 186,000 (310,000 x 60%). We do 
not inquire about the size of employer applicants, however, the number 
of small entities applying is certainly less than the applicant total 
and significantly below the potential universe of small businesses to 
which the program is open. Because applications come from employers in 
all industry segments, we consider all small businesses as the 
appropriate universe for comparison purposes. According to the Small 
Business Administration's publication The Regulatory Flexibility Act--
An Implementation Guide for Federal Agencies, there were 22,900,000 
small businesses in the United States in 2002.

[[Page 43718]]

In comparison to the universe of all small businesses, the 
approximately 186,000 employers with pending applications would 
represent at most 0.8 percent of all small businesses [(186,000 ) 
22,900,000 = 0.008; 0.008 x 100 = 0.8%)]. DOL asserts that 0.8% of 
small businesses does not represent a significant proportion of small 
entities.
    The Department welcomes comments on this RFA certification.
    Unfunded Mandates Reform Act of 1995: This interim final 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 one year, and it will not significantly or uniquely affect small 
governments. Therefore, no actions are deemed necessary under the 
provisions of the Unfunded Mandates Reform Act of 1995.
    Small Business Regulatory Enforcement Fairness Act of 1996: This 
interim final rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Act of 1996 (SBREFA). The 
standards for determining whether a rule is a major rule as defined by 
section 804 of SBREFA are similar to those used to determine whether a 
rule is an ``economically significant regulatory action'' within the 
meaning of Executive Order 12866. Because we certified that this 
interim final rule is not an economically significant rule under 
Executive Order 12866, we certify that it also is not a major rule 
under SBREFA. 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--Federalism: This interim final rule will not 
have a substantial direct effect on the States, on the relationship 
between the National Government and the States, or on the distribution 
of power and responsibilities among the various levels of government. 
Therefore, in accordance with Executive Order 13132, we have determined 
that this interim final rule does not have sufficient federalism 
implications to warrant the preparation of a summary impact statement.
    Assessment of Federal Regulations and Policies on Families: This 
interim final rule does not affect family well-being.
    Paperwork Reduction Act: The collection of information under part 
656 is currently approved under OMB control number 1205-0015. This 
interim final rule does not include a substantive or material 
modification of that collection of information, because it will not add 
to or change paperwork requirements for employers applying for 
permanent labor certification, but rather creates a means for 
consolidated processing at centralized locations. Accordingly, the 
Department believes the Paperwork Reduction Act is inapplicable to this 
interim final rule. The Department invites the public to comment on its 
Paperwork Reduction Act analysis.
    Publication as an Interim Final Rule: The Department has determined 
that it is unnecessary and contrary to the public interest to publish 
this technical amendment to the permanent labor certification 
regulations as a Notice of Proposed Rulemaking, with the delays 
inherent to the process of publishing a proposed rule, receiving and 
reviewing comments, and clearing and publishing a final rule. This 
interim final rule will allow ETA's Division of Foreign Labor 
Certification to take more rapid action to reduce the serious backlog 
in permanent labor certification applications through transfer of 
applications from the SWAs and ETA Regional Offices to centralized 
processing sites. This processing change is based on results of a pilot 
program that demonstrated that centralized processing would create 
economic and time-saving efficiencies and speed reduction of the 
backlog. Centralized processing will not alter substantive requirements 
for certification. It will not impose an additional burden on employers 
who have filed permanent labor certification applications or on the 
immigrant aliens on whose behalf applications have been filed. Rather, 
centralized processing is expected to benefit applicants by reducing 
anticipated processing time. For these reasons, it would be contrary to 
the public interest, as well as unnecessary; to delay implementation of 
this technical regulatory amendment to establish centralized processing 
procedures. Therefore, the Department finds pursuant to 5 U.S.C. 
553(b)(3)(B) that good cause exists for publishing this regulatory 
amendment as an interim final rule. While notice of proposed rulemaking 
is being waived, the Department is interested in comments and advice 
regarding this interim final rule.
    Catalogue of Federal Domestic Assistance Number: This program is 
listed in the Catalog of Federal Domestic Assistance at Number 17.203, 
``Labor Certification for Alien Workers.''

List of Subjects in 20 CFR Part 656

    Administrative practice and procedure, Agriculture, Aliens, 
Crewmembers, Employment, Employment and training, Enforcement, Forest 
and forest products, Fraud, Guam, Health professions, Immigration, 
Labor, Longshore and harbor work, Migrant labor, Passports and visas, 
Reporting and recordkeeping requirements, Students, Unemployment, 
Wages, and Working conditions.

0
For the reasons stated in the Preamble, the Employment and Training 
Administration, Department of Labor, amends 20 CFR part 656 as follows:

PART 656--LABOR CERTIFICATION PROCESS FOR PERMANENT EMPLOYMENT OF 
ALIENS IN THE UNITED STATES

0
1. The authority citation for part 656 continues to read as follows:

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

0
2. Part 656, subpart C, is amended by adding section 656.24a, to be 
placed immediately after section 656.24, to read as follows:


Sec.  656.24a  Centralized processing.

    (a) To facilitate processing of applications and elimination of 
backlogs, the National Certifying Officer (Chief, Division of Foreign 
Labor Certification) may direct a SWA or an ETA Regional Office to 
transfer to a non-State centralized processing site some or all pending 
applications filed under part 656. The Chief will issue a directive to 
the SWAs and ETA Regional Offices stating how pending applications are 
to be identified for centralized processing and where they are to be 
transferred. For each transferred application, the centralized 
processing site will perform all required functions of the SWA (as 
described in Sec.  656.21) and the Regional Certifying Officer (as 
described in Sec.  656.21 and Sec.  656.24).
    (b) If the labor certification presents a special or unique 
problem, the centralized processing site, in consultation with or at 
the direction of the National Certifying Officer, may refer the 
application to the National Certifying Officer for determination. If 
the National Certifying Officer has directed that certain types of 
applications or specific applications be handled in the national 
office, the centralized processing site shall refer such applications 
to the National Certifying Officer.


[[Page 43719]]


    Signed at Washington, DC, this 13th day of July, 2004.
Emily Stover DeRocco,
Assistant Secretary, Employment and Training Administration.
[FR Doc. 04-16536 Filed 7-20-04; 8:45 am]
BILLING CODE 4510-30-P




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