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[Federal Register: February 13, 2006 (Volume 71, Number 29)]
[Proposed Rules]               
[Page 7655-7664]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13fe06-27]                         


[[Page 7655]]

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Part III





Department of Labor





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



Employment and Training Administration



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



20 CFR Parts 656



Labor Certification for the Permanent Employment of Aliens in the 
United States; Reducing the Incentives and Opportunities for Fraud and 
Abuse and Enhancing Program Integrity; Proposed Rule


[[Page 7656]]


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

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 656

[RIN 1205-AB42]

 
Labor Certification for the Permanent Employment of Aliens in the 
United States; Reducing the Incentives and Opportunities for Fraud and 
Abuse and Enhancing Program Integrity

AGENCY: Employment and Training Administration, Labor.

ACTION: Notice of proposed rulemaking with request for comments.

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

SUMMARY: The Employment and Training Administration (ETA) of the 
Department of Labor (Department or DOL) is publishing a Notice of 
Proposed Rulemaking (NPRM or proposed rule) with request for comments 
to enhance program integrity and reduce the incentives and 
opportunities for fraud and abuse related to the permanent employment 
of aliens in the United States. First, DOL is proposing to eliminate 
the current practice of allowing the substitution of alien 
beneficiaries on permanent labor certification applications and 
resulting certifications. Second, DOL is proposing a 45-day period for 
employers to file approved permanent labor certifications in support of 
a petition with the Department of Homeland Security, United States 
Citizenship and Immigration Services (DHS). Third, the proposed rule 
expressly prohibits the sale, barter, or purchase of permanent labor 
applications and certifications, as well as other related payments. 
Finally, the proposed rule includes provisions highlighting existing 
law pertaining to submission of fraudulent or false information, 
clarifying current DOL procedures for responding to possible fraud, and 
adding procedures for debarment from the permanent labor certification 
program. Under this proposed regulation, these provisions to enhance 
program integrity and reduce fraud and abuse would apply to permanent 
labor certification applications and approved certifications filed 
under both the regulation effective March 28, 2005, and any prior 
regulation implementing the permanent labor certification program. This 
proposed rule also proposes clarifying modifications of applications 
filed after March 28, 2005, under the new streamlined permanent labor 
certification process. The Department solicits comments on each 
provision contained in this NPRM.

DATES: Interested persons are invited to submit written comments on the 
proposed rule on or before April 14, 2006.

ADDRESSES: You may submit comments, identified by Regulatory 
Information Number (RIN) 1205-AB42, by any of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov. 

Follow the Web site instructions for submitting comments.
     E-mail: Comments may be submitted by e-mail to 
fraud.comments@dol.gov. Include RIN 1205-AB42 in the subject line of 

the message.
     Mail: Submit written comments to the Assistant Secretary, 
Employment and Training Administration, U.S. Department of Labor, 200 
Constitution Avenue, NW., Room C-4312, Washington, DC 20210, Attention: 
John R. Beverly, Interim Chief, Division of Foreign Labor 
Certification. Because of security measures, mail directed to 
Washington, DC is sometimes delayed. We will consider only comments 
postmarked by the U.S. Postal Service or proof of delivery from another 
delivery service such as UPS or Federal Express on or before the 
deadline for comments.
    Instructions: All submissions received must include the RIN 1205-
AB42 for this rulemaking. Receipt of submissions, whether by U.S. Mail 
or e-mail, will not be acknowledged. Because DOL continues to 
experience occasional delays in receiving postal mail in the 
Washington, DC, area, commenters are encouraged to submit comments via 
e-mail.
    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 
proposed 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: John R. Beverly, Interim Chief, 
Division of Foreign Labor Certification, Employment and Training 
Administration, 200 Constitution Avenue, NW., Room C-4312, Washington, 
DC 20210. Telephone (202) 693-3010 (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 (800) 877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

    The purpose of this proposed rule is to impose clear limitations on 
the acquisition and use of permanent labor certification applications 
and approved permanent labor certifications in order to reduce 
incentives and opportunities for fraud and abuse in the permanent labor 
certification program, and to propose measures to enhance the integrity 
of the permanent labor certification program.

A. Statutory Standard and Current Department of Labor Regulations

    Under section 212(a)(5)(A) of the Immigration and Nationality Act 
(INA) (8 U.S.C. 1182(a)(5)(A)), before the Department of Homeland 
Security (DHS) may approve petition requests and the Department of 
State (DOS) may issue visas and admit certain immigrant aliens to work 
permanently in the United States, the Secretary of Labor must certify 
to the Secretary of Homeland Security and to the Secretary of State 
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.
    If the Secretary of Labor, through the Employment and Training 
Administration (ETA), determines there are no able, willing, qualified, 
and available U.S. workers and employment of the alien will not 
adversely affect the wages and working conditions of similarly employed 
U.S. workers, the Secretary so certifies to DHS and to DOS by granting 
a permanent labor certification. If DOL can not make both of the above 
findings, the application for permanent labor certification is denied.
    The INA does not address substitution of aliens in the permanent 
labor certification process. Similarly, the Department of Labor's 
regulations are silent regarding substitution of aliens.
    The Department of Labor's regulation, found at 20 CFR part 656, 
governs the labor certification process for the permanent employment of 
immigrant aliens in the United States and sets forth the 
responsibilities of employers who

[[Page 7657]]

desire to employ immigrant aliens permanently in the United States.
    On May 6, 2002, the Department of Labor published a Notice of 
Proposed Rulemaking (PERM NPRM) to streamline the permanent labor 
certification program. 67 FR 30466. A final rule implementing the 
streamlined permanent labor certification program through revisions to 
20 CFR part 656 was published on December 27, 2004, and took effect on 
March 28, 2005. 69 FR 77326. The prior part 656 governs processing of 
permanent labor certification applications filed prior to March 28, 
2005, except as previously filed applications may be refiled under the 
new rule, and except as certain provisions of this proposed rule would 
impact applications filed prior to March 28, 2005.

B. General Immigration Process Involving Permanent Labor Certifications

    To obtain permanent foreign workers, U.S. employers generally must 
engage in a multi-step process that involves the DOL and DHS, and in 
some instances, the Department of State (DOS). The INA classifies 
employment-based (EB) immigrant workers into categories, based on the 
general job requirements, and the perceived benefit to American 
society. The United States employer must demonstrate the job 
requirements fit into one of these classifications. The first step in 
the process for the EB2 and EB3 classifications, described below, 
generally begins with the U.S. employer filing a labor certification 
application with the DOL under 20 CFR part 656. The U.S. employer must 
demonstrate to DOL through a test of the labor market there are no U.S. 
workers 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. The employer must also 
demonstrate to DOL the employment of the alien will not adversely 
affect the wages and working conditions of similarly employed U.S. 
workers. After a review of the labor certification application, DOL may 
either approve or deny the labor certification application.
    The Form I-140 is a petition filed with DHS by a United States 
employer for a prospective permanent alien employee. Most Form I-140 
petitions filed under Sections 203(b)(2) and 203(b)(3) of the Act, 
which are commonly called the EB2 and EB3 classifications, must be 
accompanied by an approved labor certification issued by DOL. DHS has 
established procedures for filing Form I-140 petitions under 8 CFR 
204.5.
    DHS reviews the approved labor certification in conjunction with 
the I-140 petition and other supporting documents to evaluate whether 
the position being offered to the alien worker in the petition is the 
same as the position specified on the labor certification and the 
employment qualifies for the immigrant classification requested by the 
employer. In addition, DHS evaluates the alien worker's education, 
training, and work experience to determine whether the particular alien 
worker meets the job requirements specified on the labor certification. 
The approved labor certification is also used to establish the priority 
in which an immigrant visa will be made available to the alien worker, 
based on the date the labor certification application was filed with 
DOL.

A. Current Practices Involving Permanent Labor Certifications

    DOL, as an accommodation to U.S. employers, has traditionally 
allowed employers to substitute an alien named on a pending or approved 
labor certification with another prospective alien employee. Labor 
certification substitution has occurred either while the certification 
application is pending at DOL or while a Form I-140 petition, filed 
with an approved labor certification, is pending with DHS. 
Historically, this substitution practice was permitted because of the 
length of time it took to obtain a labor certification or receive 
approval of the Form I-140 petition.
    In addition to the substitution issue, another concern arises 
because once issued by DOL, labor certifications are valid 
indefinitely. Another issue stems from the fact that the current 
regulations do not address payments related to the permanent labor 
certification program or debarment authority. The Department now seeks 
to address problems that have arisen related to substitution, lack of 
validity periods for certifications, and financial transactions related 
to the permanent labor certification program.

II. Issues Arising From Current Practices

    For a number of years, the Department has expressed concern that 
various immigration practices, including substitution, are subject to a 
high degree of fraud and abuse. See, e.g., Interim Final Rule, 56 FR 
54920 (1991).\1\ This concern has been heightened by (1) A number of 
recent criminal prosecutions by the Department of Justice, (2) 
recommendations from the Department of Justice and the Department of 
Labor's Office of Inspector General, and (3) public comments concerning 
fraud received in response to the May 6, 2002, PERM NPRM. See, e.g., 69 
FR at 77328, 77329, 77363, 77364.
---------------------------------------------------------------------------

    \1\ The 1991 Interim Final Rule included a provision prohibiting 
substitution. That provision was overturned by the U.S. Court of 
Appeals for the DC Circuit on a technical Administrative Procedures 
Act ground. Kooritzky v. Reich, 17 F.3d 1509 (DC Cir. 1994). The 
publication of this proposed rule for public notice and comment 
addresses the Court's concern.
---------------------------------------------------------------------------

    The Department's review of recent prosecutions by the Department of 
Justice, in particular, has revealed the ability to substitute alien 
beneficiaries has turned labor certifications into a commodity which 
can be sold by unscrupulous employers, attorneys, and agents to those 
seeking a ``green card.'' Similarly, the ability to sell labor 
certifications is enhanced by their current open-ended validity, 
providing a lengthy period when a certification can be marketed. In 
many of those applications, the job offer is fictitious. In others, the 
job in question exists but is not truly open to U.S. workers. Rather, 
the job is steered to a specific alien in return for a substantial fee 
or kickback. The Federal Government has prosecuted a number of cases 
resulting from employers, agents, or attorneys seeking to fraudulently 
profit on the substitution of aliens on approved labor certifications 
and applications. For example, one attorney filed approximately 2,700 
fraudulent applications with DOL that he later sold to aliens for at 
least $20,000 a piece so they could be substituted for the named 
beneficiary on approved labor certifications. See U.S. v. Kooritzky, 
No. 02-502-A (E.D. Va.). Additional prosecutions have involved the sale 
of fraudulent applications or certifications. See, e.g., U.S. v. Mir, 
No. 8:03-CR-00156-AW-ALL (D. Md.); U.S. v. Fredman et al., No. WMN-05-
198 (D. Md.); U.S. v. Lee, No. 03-947-M (E.D. Va.); and U.S. v. 
Mederos, No. 04-314-A (E.D. Va.).
    The final rule implementing the streamlined permanent labor 
certification program discussed DOL's concerns about the possibility of 
fraud in the permanent labor certification program and the steps the 
Department is taking to minimize the filing of fraudulent or non-
meritorious applications. 69 FR at 77328. The Department noted the 
practice of allowing the substitution of alien beneficiaries may 
provide an incentive for fraudulent applications to be filed with the 
Department. 69 FR at 77363. The Department also concluded in the final 
rule the emerging ``black market''

[[Page 7658]]

for purchase and sale of approved labor certifications is not 
consistent with the purpose of the labor certification statute at Sec.  
212(a)(5)(A) of the INA. However, DOL was not able to address many of 
these fraud issues as they arguably involved matters that were not a 
logical outgrowth of the proposals contained in the PERM NPRM. The 
Department indicated it would be exploring regulatory solutions to 
address this issue. 69 FR at 77363.

III. Proposed Amendments to the Permanent Labor Certification 
Regulations

    In order to protect the integrity of the permanent labor 
certification program, deter fraud, and comply with the Department's 
statutory obligation to protect the wages and working conditions of 
U.S. workers, the Department has determined a number of amendments are 
appropriate. The first amendment would prohibit the substitution of 
alien beneficiaries on pending applications for permanent labor 
certification and on approved permanent labor certifications not yet 
filed with DHS. This amendment could, at least to some degree, affect 
DHS's current practice of allowing U.S. employers to substitute an 
alien through the filing of a new Form I-140 petition, supported by a 
labor certification in the name of the original beneficiary. The second 
amendment would require a permanent labor certification be filed with 
DHS within 45 calendar days of the date it is certified by DOL. The 
third amendment would prohibit the sale, barter, and purchase of 
applications and approved labor certifications, as well as other 
related payments. Finally, the Department is proposing enforcement 
mechanisms, including debarment with appeal rights, to protect the 
integrity of the permanent labor certification program and deter 
individuals or entities from engaging in prohibited transactions or 
abusing the labor certification process. The Department invites public 
comment regarding all aspects of each of these proposed changes.
    The Department believes these changes should be broadly implemented 
both to achieve greater impact in fraud deterrence and enhancement of 
program integrity. In addition to applications for permanent labor 
certification filed under the new PERM regulation that became effective 
March 28, 2005, approximately 355,000 applications for permanent labor 
certification are pending that will be processed under the prior 
regulation in the Department's new ``backlog elimination'' centers 
unless the employer chooses to re-file the application under the new 
regulation. See 69 FR 43716 (July 21, 2004) (Interim Final Regulation 
regarding backlog center procedures); 20 CFR 656.17(d) (refiling 
procedures under new regulation). Program integrity and fraud 
deterrence are concerns both for labor certifications filed under the 
current regulation effective March 28, 2005, and the prior regulation. 
Additionally, the proposed debarment and other program integrity 
mechanisms should be available for all actions should this rule be 
finalized.
    Accordingly, the Department intends to make the amendments proposed 
in this NPRM generally applicable to applications and labor 
certifications under both the prior and current regulations, as further 
described below. This action would modify the statement in the preamble 
to the December 27, 2004, final rule that applications filed before 
that final rule's effective date will continue to be processed and 
governed by the then-current regulation. 69 FR at 77326. Specifically, 
the Department proposes as follows regarding applicability:
    *Substitution--Substitution of alien beneficiaries will be 
prohibited as of the effective date of a final rule resulting from this 
NPRM and that prohibition will apply to all pending permanent labor 
certification applications and to approved certifications not yet filed 
with DHS, whether the application was filed under the prior or current 
regulation. This regulatory change would not affect substitutions 
approved prior to the final rule's effective date.
    *Validity period--All permanent labor certifications approved on or 
after the effective date of a final rule issued in response to this 
NPRM will expire within 45 calendar days of certification, whether the 
original application was filed under the prior or current regulation. 
Likewise, all certifications approved prior to a final rule's effective 
date, whether filed under the prior or current regulation, will expire 
within 45 calendar days of that effective date unless filed in support 
of an I-140 petition with the Department of Homeland Security.
    *Ban on sale, barter, purchase and certain payments--The ban on 
sale, barter, purchase, and related payments will apply to all such 
transactions on or after the effective date of a final rule resulting 
from this NPRM, regardless of whether the labor certification 
application involved was filed under the prior or current regulation 
implementing the permanent labor certification program.
    *Debarment and program integrity--Last, on or after the effective 
date of a final rule resulting from this NPRM, the Department may debar 
an employer, attorney, or agent based upon any actions that were 
improper or prohibited at the time the action occurred, regardless of 
whether the labor certification application involved was filed under 
the prior or current regulation. New provisions applicable to 
applications filed under the prior or current regulation also highlight 
existing law pertaining to submission of fraudulent or false 
information, and clarify procedures for responding to possible fraud.

A. Elimination of the Practice of Allowing Substitution of Alien 
Beneficiaries on Labor Certifications and Applications, and Other 
Changes to Applications

    The DOL's program experience, supplemented by information from 
other Federal agencies with an interest in the permanent labor 
certification program, and particularly Federal Government 
prosecutions, indicates the current practice of allowing substitution 
of alien beneficiaries provides a strong incentive for the filing of 
fraudulent labor certification applications, and creates an opportunity 
for fraud throughout the lawful permanent resident process.
    If substitution is permitted, the certification or an application 
can be marketed to an alien who is willing to pay a considerable sum of 
money to be substituted for the named alien on the application or 
certification. The possibility of lucrative substitutions has 
encouraged several types of fraud. For example, to obtain permanent 
labor certifications that could be marketed to substitute aliens, 
fraudulent labor certification applications have been submitted on 
behalf of nonexistent employers, submitted without the knowledge of the 
employer, or submitted on behalf of employers who are paid for the use 
of their names. In many such cases, the named alien on the application 
may be fictitious or the same alien may be fraudulently named on 
multiple labor certification applications.
    The Department has concluded these experiences provide sufficient 
reasons for eliminating the practice of allowing the substitution of 
alien beneficiaries on permanent labor certifications or permanent 
labor certification applications. No statutory entitlement exists to 
allow substitution of aliens on labor certifications or applications, 
nor do DOL regulations authorize or address the practice of alien 
substitutions. Rather, substitution has been permitted

[[Page 7659]]

as a procedural accommodation to employer applicants.
    The DOL also has concluded the emerging ``black market'' in labor 
certifications or applications conflicts with the purpose of the 
permanent labor certification statute at section 212(a)(5)(A) of the 
INA and the Department's labor certification regulations at 20 CFR part 
656. The purpose of the statute and regulations is to allow an employer 
to obtain a needed immigrant worker only if a qualified U.S. worker is 
not available and the admission of such an immigrant worker will not 
have an adverse effect on the wages and working conditions of similarly 
employed U.S. workers.
    If the original alien beneficiary is no longer available, then the 
employer must use some means to find a new worker. Prohibiting 
substitution will ensure the employer again makes the employment 
opportunity available to U.S. workers. In the event another alien is 
again the only qualified person available, the employer should be 
required to submit a new application reflecting the new recruitment 
process undertaken. Because the Department's role is to allow employers 
access to the international labor market only if there is no U.S. 
worker able, willing, qualified, and available for the employment 
opportunity, elimination of substitution will strengthen program 
integrity and will assist employers with a legitimate need for alien 
workers by ensuring appropriate use of the labor certification process 
and the judicious use of the limited number of available visas 
involving permanent labor certifications.
    The DOL acknowledges that concerns have been expressed that 
substitution is unfair to other aliens waiting in queue for visas 
because, under existing practices, the substituted alien obtains a 
priority date \2\ based on an application filed for a different alien 
and the date is often years earlier than the substituted alien would 
receive if named in a newly filed application.
---------------------------------------------------------------------------

    \2\ The Department of State uses the filing date of the 
permanent labor certification application to establish the priority 
date of a preference visa applicant under Section 203(b)(2) and (3) 
of the Immigration and Nationality Act. See 20 CFR 656.17(c); 20 CFR 
656.30(b); 8 CFR 204.5(d) and 22 CFR 42.53.
---------------------------------------------------------------------------

    The DOL has concluded that tolerating the sale of a public benefit 
is simply bad government. Allowing such a practice to continue would 
serve to undermine the belief and confidence of the public in the 
objectives and integrity of government programs in general and the 
permanent labor certification program in particular. By banning 
substitution, the Department does not undertake to determine the visa 
eligibility status of individual aliens. Rather, the Department has 
developed the proposed substitution prohibition to enhance program 
integrity and eliminate the current ``black market'' in labor 
certifications and applications. The Department also recognizes that 
banning substitution on pending or approved labor certifications could, 
at least to some degree, affect DHS's current practice of allowing U.S. 
employers to substitute an alien through the filing of a new Form I-140 
petition, supported by a labor certification in the name of the 
original beneficiary.
    In the past, the strongest argument in support of allowing 
substitutions was the long time it took to obtain a permanent labor 
certification. The streamlined process introduced by the new 
regulation, however, has reduced significantly the processing time for 
those employers who legitimately need to file a new application. If 
substitution is no longer necessary to accommodate long wait times, the 
Department believes there is no longer a compelling reason to allow the 
practice. Because the Department's primary concern in the permanent 
labor certification area is the protection of U.S. workers, if the 
original alien is no longer available, the purposes of the permanent 
labor certification program are most advanced if the employer is 
required to seek a new employee first among U.S. workers.
    Accordingly, the Department is proposing in a new 20 CFR 656.11(a) 
and a revised 656.30(c) that only the alien named on the originally 
filed Application for Alien Employment Certification (ETA Form 750) or 
Application for Permanent Employment Certification (ETA Form 9089) may 
be the beneficiary of an approved labor certification. This regulatory 
change would not affect substitutions approved prior to the final 
rule's effective date.
    DOL proposes to accomplish this change by explicitly providing in 
Sec.  656.11(a) that substitution or change to the identity of an alien 
beneficiary is prohibited on any application filed with DOL for 
permanent labor certification, and on any resulting certification, 
whether filed under the current or any prior regulation. Further, DOL 
proposes to revise Sec.  656.30(c) to provide that a certification 
resulting from an application filed under the current or prior 
regulation is only valid for the alien named on the original permanent 
labor certification application.
    The Department is also proposing to clarify procedures for 
modifying applications filed under the new permanent labor 
certification regulation. Under proposed Sec.  656.11(b), DOL clarifies 
that requests for modifications to an application submitted under the 
current regulation will not be accepted. This proposed clarification is 
consistent with the streamlined labor certification procedures of the 
new regulation. Nothing in the streamlined regulation contemplates 
allowing or permits employers to make changes to applications after 
filing. The re-engineered program is designed to streamline the process 
and an open amendment process that freely allows changes to 
applications or results in continual back and forth exchange between 
the employer and the Department regarding amendment requests is 
inconsistent with that goal. Further, the re-engineered certification 
process has eliminated the need for changes. The online application 
system is designed to allow the user to proofread and revise before 
submitting the application, and the Department expects and assumes 
users will do so. Moreover, in signing the application, the employer 
declares under penalty of perjury that he or she has read and reviewed 
the application and the submitted information is true and accurate to 
the best of his or her knowledge. In the event of an inadvertent error 
or any other need to refile, an employer can withdraw an application, 
make the corrections and file again immediately. Similarly, after an 
employer receives a denial under the new system, employers can choose 
to correct the application and file again immediately if they do not 
seek reconsideration or appeal. In addition, the entire application is 
a set of attestations and freely allowing changes undermines the 
integrity of the labor certification process because changing one 
answer on the application could impact analysis of the application as a 
whole.

B. Labor Certification Validity and Filing Period

    The current indefinite validity of approved permanent labor 
certifications has contributed to the growth of the ``black market'' in 
approved labor certifications. Under the current regulations, labor 
certifications never expire, and they can be traded indefinitely and 
sold to the highest bidder. The Federal Government has prosecuted 
several cases involving the sale of fraudulent applications or 
certifications. Moreover, over time, the likelihood the certified job 
opportunity still exists as it appeared on the original application 
becomes more doubtful, and the labor market test and the prevailing

[[Page 7660]]

wage determination become less accurate or ``stale.''
    To address these concerns, the Department is proposing in 20 CFR 
656.30(b) that an approved permanent labor certification must be filed 
in support of a petition with DHS within 45 calendar days of the date 
DOL grants certification. For those labor certifications granted before 
the effective date of a final rule resulting from this NPRM, employers 
would have 45 calendar days from a final rule's effective date to file 
the labor certification in support of a petition with DHS. These 
expiration provisions are proposed to apply whether the application was 
filed under the regulation effective March 28, 2005, or any prior 
regulation.

C. Prohibition on the Sale, Barter, or Purchase of Applications for 
Permanent Labor Certification and of Approved Permanent Labor 
Certifications, and Prohibition on Related Payments

    The Department is proposing in 20 CFR 656.12 to prohibit improper 
commerce and several types of payments related to permanent labor 
certification applications and certifications. As noted above, 
permanent labor certifications have become commodities that too often 
are bought and sold by aliens seeking ``green cards.'' A ``black 
market'' has been created in which employers or agents agree to broker 
applications for permanent labor certifications on behalf of aliens in 
exchange for payment of some kind. Such payments are not compatible 
with the purposes of the permanent labor certification program and may 
indicate lack of a bona fide position truly open to U.S. workers. 
Further, these payments may indicate the wage stated on the application 
is not the true amount the employer will pay the alien. As with the 
substitution practice, the Department has concluded that allowing sales 
of a government benefit to continue is simply bad government, and 
therefore proposes in Sec.  656.12(a) to create an explicit and 
complete ban on the sale, barter, and purchase of labor certification 
applications and certifications.
    In addition, the Department is proposing in Sec.  656.12(b) to 
prohibit employers from seeking or receiving payment of any kind, from 
any source, for filing an ETA Form 750 or an ETA Form 9089 or for other 
actions in connection with the permanent labor certification process. 
Prohibited payments would include, but not be limited to: Employer fees 
for hiring the alien beneficiary; receiving ``kickbacks'' of part of 
the alien beneficiary's pay whether through a payroll deduction or 
otherwise; paying the alien beneficiary less than the rate of pay 
stated on the application; goods and services or other wage or 
employment concessions; or receiving payment from aliens, attorneys, or 
agents for allowing a permanent labor certification application to be 
filed on behalf of the employer. The Department proposes to include in 
this prohibition a ban on alien payment, directly or indirectly, of the 
employer's attorney's fees and costs related to preparing, filing, and 
obtaining a permanent labor certification. Employers, not aliens, file 
a permanent labor certification application and, therefore, these 
employer costs are not to be paid or reimbursed in any way by the alien 
beneficiary.
    In some instances, an alien's payment of these costs may indicate 
there is not a bona fide position and wage available to U.S. workers. 
Further, alien subsidization of employer costs adversely affects the 
likelihood that a U.S. worker would be offered the job when, for 
example, the alien is paying for the recruitment effort.
    The Department recognizes the possibility that legitimate employers 
may have a practice of seeking reimbursement from the aliens they hire 
for the expenses the employers incur in acquiring the labor 
certification. The Department, however, believes that any such 
reimbursement, e.g., of attorneys fees to prepare an employer's 
application or of recruitment expenses to determine whether domestic 
labor is available or other such employer expenses, is contrary to the 
purpose of the labor certification process and should be a cost borne 
exclusively by the employer.
    For these reasons, the Department is proposing a complete 
prohibition on employers being reimbursed for the expenses they incur 
in acquiring permanent labor certifications, including payment by the 
alien of the employer's attorney's fees. The Department welcomes 
comments from the public on this issue.

D. Debarment and Program Integrity

    This NPRM also contains several provisions to promote the program's 
integrity and assist the Department in obtaining compliance with the 
proposed amendments and existing program requirements. The Department 
proposes several revisions to Sec.  656.31, the regulation section 
regarding the Department's response to instances of potential fraud or 
misrepresentation, including making the section applicable to 
applications filed under the current regulation and the regulation in 
effect prior to March 28, 2005. The Department proposes to revise 20 
CFR 656.31(a) and (b) to clarify that the Department may suspend 
processing of any permanent labor certification application if an 
employer, attorney, or agent connected to that application is involved 
in either possible fraud or willful misrepresentation or is named in a 
criminal indictment or information related to the permanent labor 
certification program, and to clarify the Department's response to 
potential fraud. Given the breadth and increased sophistication of the 
immigration fraud that has been identified in the recent past, the 
Department needs added flexibility to respond to potential 
improprieties in labor certification filings. Although the Department 
already has the authority, this proposed rule also will clarify Sec.  
656.31(a) to state the Department may deny any application for 
permanent labor certification which contains false statements, is 
fraudulent, or otherwise was submitted in violation of the permanent 
labor certification regulations.
    Proposed Sec.  656.31(c) continues to provide that the Certifying 
Officer will decide each application on the merits in the event the 
employer, attorney, or agent is acquitted of wrongdoing or if criminal 
charges otherwise fail to result in a finding of fraud or willful 
misrepresentation. Where a court, DHS or the Department of State finds 
the employer, attorney, or agent did commit fraud or willful 
misrepresentation, the proposed revision to Sec.  656.31(d) provides 
that any pending applications related to that employer, attorney, or 
agent will be decided on the merits and may be denied in accordance 
with Sec.  656.24. For instances in which a pending application 
involves an attorney or agent who is the subject of a finding of fraud 
or willful misrepresentation, the proposed revision to Sec.  656.31(d) 
also includes a procedure for notifying employers associated with those 
applications of the finding.
    Further, in Sec.  656.31(e), the Department proposes to create a 
debarment mechanism, with appeal rights as delineated in a proposed 
revision to Sec.  656.26, to deter individuals or entities from 
engaging in fraudulent permanent labor certification activities, 
prohibited transactions, or otherwise abusing the permanent labor 
certification process. The Department acknowledges that not all 
debarment triggers should be treated equally, and will therefore take 
steps to ensure any debarment is reasonable and

[[Page 7661]]

proportionate to the improper activity. Debarment from the program is a 
necessary and reasonable mechanism to enforce permanent labor 
certification requirements and statutory objectives.
    Finally, in this NPRM, the Department is proposing to add a new 
Sec.  656.31(f) to emphasize existing laws codified under 18 U.S.C. 2, 
1001, 1546, and 1621 that prohibit knowingly and willingly furnishing 
false information to the government, misusing immigration documents, 
and committing perjury. Although the Employment and Training 
Administration (ETA) does not have authority to investigate or 
prosecute these violations, ETA will refer suspected violations to the 
appropriate authority.

IV. Required Administrative Information

A. Regulatory Flexibility Act

    We have notified the Chief Counsel for Advocacy, Small Business 
Administration, and made the certification under the Regulatory 
Flexibility Act at 5 U.S.C. 605(b), that the rule would not have a 
significant economic impact on a substantial number of small entities. 
The rule would affect only those employers seeking immigrant workers 
for permanent employment in the United States. Since any employer can 
file an application for permanent labor certification, the Department 
has assessed that the appropriate universe to determine the impact of 
the proposed rule on a substantial number of small entities in the 
United States is the entire universe of small businesses in the United 
States. The Department estimates in the upcoming year 60,000 employers 
will file approximately 100,000 applications for permanent employment 
certification. Some large employers file several hundred applications 
in a year. Therefore, the number of small entities that file 
applications is significantly less than the 60,000 employers that will 
file applications in the coming year. 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. Thus the percentage of small 
businesses that file applications for permanent alien employment 
certification is less than 0.27 percent (60,000 / 22,900,000 = 0.262%).

B. 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 
1995.

C. Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness 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 rule under Executive Order 
12866.'' Because we certified that this Notice of Proposed Rulemaking 
is not a major rule under Executive Order 12866, we certify it is also 
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.

D. Executive Order 12866

    We have determined this proposed rule is not an ``economically 
significant regulatory action'' within the meaning of Executive Order 
12866. This rule will not have an annual effect on the economy of $100 
million or more, nor will it 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. The direct incremental costs employers 
would incur because of this rule, above business practices required of 
employers that are applying for permanent alien workers by the current 
rule, will not amount to $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. The Department believes 
any potential increase in applications filed as a result of either 
employers withdrawing and then filing a corrected application, 
employers allowing a certification to expire and then filing a new 
application, or recruitment costs associated with this proposed rule 
would be more than offset by an anticipated reduction in average 
processing time, because the Department will not expend resources to 
process as many fraudulent applications. Aliens will save money if they 
are not forced to pay employer expenses nor provide kickbacks to 
certain agents and employers. Any cost savings realized, however, will 
not be greater than $100 million. This is a significant rulemaking, 
although not an economically significant one, and has therefore been 
reviewed by the Office of Management and Budget.

E. Executive Order 13132

    This proposed rule will not have a substantial direct effect on the 
states, on the relationship between the Federal 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 this rule does not have sufficient 
federalism implications to warrant the preparation of a summary impact 
statement.

F. Executive Order 12988

    This regulation meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

G. Paperwork Reduction Act

    The collection of information under part 656 is currently approved 
under OMB control number 1205-0015. This proposed 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. 
The only consequence of the proposed amendment eliminating the current 
practice allowing substitution of alien beneficiaries on applications 
and approved permanent labor certifications would be to require those 
relatively few employers that could have availed themselves of the 
substitution practice to file new applications on behalf of alien 
beneficiaries. The Department does not anticipate any paperwork burden 
resulting from the creation of a 45-day validity period for approved 
certifications, the prohibition on sale, purchase, and barter of 
applications and labor certifications and on related payments, the ban 
on changes to applications filed under the new streamlined permanent 
labor certification procedures, nor the

[[Page 7662]]

additional enforcement mechanisms in the NPRM. The Department 
anticipates an insignificant increase in volume of permanent labor 
certification applications filed as a result of either employers 
withdrawing and then filing a corrected application or employers 
allowing a certification to expire and then filing a new application. 
In either situation, employers could avoid the need to file additional 
applications by proofreading and complying with regulatory 
requirements. The Department invites the public to comment on its 
Paperwork Reduction Act analysis. Comments should be sent directly to 
the Office of Information Management, Department of Labor, Room N-1301, 
200 Constitution Avenue, NW., Washington, DC 20210; and to the Office 
of Information and Regulatory Affairs, Office of Management Budget, 
Washington, DC 20503.

H. Assessment of Federal Regulations and Policies on Families

    The proposed regulation does not affect family well-being.

I. Catalogue of Federal Domestic Assistance Number

    This program is listed in the Catalogue of Federal Domestic 
Assistance at Number 17.203, ``Certification for Immigrant Workers.''

List of Subjects in 20 CFR Part 656

    Administrative practice and procedure, Aliens, Employment, 
Employment and training, Enforcement, Fraud, Health professions, 
Immigration, Labor, Passports and visas, Penalties, Reporting and 
recordkeeping requirements, Unemployment, Wages, Working conditions.

    Accordingly, we propose that part 656 of Title 20, Code of Federal 
Regulations, be amended as follows:

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

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

    Authority: 8 U.S.C. 1182(a)(5)(A), 1189(p)(1); 29 U.S.C. 49 et 
seq.; section 122, Pub. L. 101-649, 109 Stat. 4978; and Title IV, 
Pub. L. 105-277, 112 Stat. 2681.

    2. Add Sec.  656.11 to read as follows:


Sec.  656.11  Substitutions and modifications to applications.

    (a) Substitution or change to the identity of an alien beneficiary 
is prohibited on any application filed with the Department of Labor for 
permanent labor certification, whether filed under the current or any 
prior regulation, and on any resulting certification.
    (b) After submission of a permanent labor certification application 
under this part, requests for modifications to the submitted 
application will not be accepted.
    3. Add Sec.  656.12 to read as follows:


Sec.  656.12  Improper commerce and payment

    The following provisions apply to applications filed under both 
this regulation and the regulation in effect prior to March 28, 2005, 
and to any certifications resulting from those applications:
    (a) Applications for permanent labor certification and approved 
labor certifications are not articles of commerce. They may not be 
sold, bartered, or purchased by individuals or entities. Any evidence 
that an application for permanent labor certification or an approved 
labor certification has been sold, bartered, or purchased shall be 
grounds for investigation under this part or any appropriate Government 
agency's procedures, denial under Sec.  656.24, revocation under Sec.  
656.32, debarment under Sec.  656.31(e), or any combination thereof.
    (b) An employer shall not seek or receive payment of any kind for 
any activity related to obtaining a permanent labor certification. 
Payment or reimbursement of the employer's attorney's fees or other 
employer costs related to preparing and filing a permanent labor 
certification application and obtaining permanent labor certification 
is prohibited. For purposes of this subsection, payment includes, but 
is not limited to, monetary payments, wage and employment concessions, 
and goods and services. Evidence an employer has sought or received 
payment from any source in connection with an application for permanent 
labor certification or an approved labor certification shall be grounds 
for investigation under this part or any appropriate Government 
agency's procedures, denial under Sec.  656.24, revocation under Sec.  
656.32, debarment under Sec.  656.31(e), or any combination thereof.
    4. Amend Sec.  656.26 by revising paragraph (a) and adding a new 
paragraph (c), to read as follows:


Sec.  656.26  Board of Alien Labor Certification Appeals review of 
denials of labor certification.

    (a) Request for review. (1) If a labor certification is denied, or 
revoked pursuant to Sec.  656.32, or if a debarment is rendered under 
Sec.  656.31(e), a request for review of the denial, revocation, or 
debarment may be made to the Board of Alien Labor Certification Appeals 
by the employer or debarred person or entity by making a request for 
such an administrative review in accordance with the procedures 
provided in this paragraph (a). The request for review must be made in 
accordance with paragraph (a)(2) of this section for denials and 
revocations or paragraph (a)(3) of this section for debarment.
    (2) Request for review of denials and revocations:
    (i) Must be sent within 30 days of the date of the determination to 
the Certifying Officer who denied the application or revoked the 
certification;
    (ii) Must clearly identify the particular labor certification 
determination for which review is sought;
    (iii) Must set forth the particular grounds for the request; and
    (iv) Must include a copy of the Final Determination.
    (3) Request for review of debarment:
    (i) Must be sent to the Chief, Division of Foreign Labor 
Certification within 30 days of the date of the debarment 
determination;
    (ii) Must clearly identify the particular debarment determination 
for which review is sought;
    (iii) Must set forth the particular grounds for the request; and
    (iv) Must include a copy of the Notice of Debarment.
    (4) The request for review, statements, briefs, and other 
submissions of the parties and amicus curiae must contain only legal 
argument and only such evidence that was within the record upon which 
the denial of labor certification, revocation, or debarment 
determination was based.
* * * * *
    (c) Debarment Appeal File. Upon the receipt of a request for review 
of debarment, the Chief, Division of Foreign Labor Certification, 
immediately must assemble an indexed Appeal File:
    (1) The Appeal File must be in chronological order, must have the 
index on top followed by the most recent document, and must have 
consecutively numbered pages. The Appeal File must contain the request 
for review, the complete application file(s), and copies of all the 
written material, such as pertinent parts and pages of surveys and/or 
reports or documents received from any court, DHS, or the Department of 
State, upon which the debarment was based.
    (2) The Chief, Division of Foreign Labor Certification, must send 
the

[[Page 7663]]

Appeal File to the Board of Alien Labor Certification Appeals, Office 
of Administrative Law Judges, 800 K Street, NW, Suite 400-N, 
Washington, DC 20001-8002.
    (3) The Chief, Division of Foreign Labor Certification, must send a 
copy of the Appeal File to the debarred person or entity. The debarred 
person or entity may furnish or suggest directly to the Board of Alien 
Labor Certification Appeals the addition of any documentation that is 
not in the Appeal File, but that was submitted before the issuance of 
the Notice of Debarment. The debarred person or entity must submit such 
documentation in writing, and must send a copy to the Associate 
Solicitor for Employment and Training Legal Services, Office of the 
Solicitor, U.S. Department of Labor, 200 Constitution Ave., NW., 
Washington, DC 20210.
    5. Amend Sec.  656.30 by: revising paragraphs (a), (b), and (c); 
and adding a new paragraph (e)(3), to read as follows:


Sec.  656.30  Validity of and invalidation of labor certifications

    (a) Priority Date. (1) The filing date for a Schedule A occupation 
or sheepherders is the date the application was dated by the 
Immigration Officer.
    (2) The filing date, established under Sec.  656.17(c), of an 
approved labor certification will be used by the Department of Homeland 
Security and the Department of State as appropriate.
    (b) Expiration of labor certifications. For certifications 
resulting from applications filed under this regulation and the 
regulation in effect prior to March 28, 2005:
    (1) An approved permanent labor certification granted on or after 
[effective date of the final rule] expires if not filed in support of a 
petition with the Department of Homeland Security within 45 calendar 
days of the date the Department of Labor granted the certification.
    (2) An approved permanent labor certification granted before 
[effective date of the final rule] expires if not filed in support of a 
petition with the Department of Homeland Security within 45 calendar 
days of [effective date of the final rule].
    (c) Scope of validity. For certifications resulting from 
applications filed under this regulation and the regulation in effect 
prior to March 28, 2005:
    (1) A permanent labor certification for a Schedule A occupation or 
sheepherders is valid only for the occupation set forth on the 
Application for Alien Employment Certification (ETA Form 750) or the 
Application for Permanent Employment Certification (ETA Form 9089) and 
only for the alien named on the original application, unless a 
substitution was approved prior to [effective date of the final rule]. 
The certification is valid throughout the United States unless the 
certification contains a geographic limitation.
    (2) A permanent labor certification involving a specific job offer 
is valid only for the particular job opportunity, the alien named on 
the original application (unless a substitution was approved prior to 
[effective date of the final rule]), and the area of intended 
employment stated on the Application for Alien Employment Certification 
(ETA Form 750) or the Application for Permanent Employment 
Certification (ETA Form 9089).
* * * * *
    (e) * * *
    (3) A duplicate labor certification shall be issued by the 
Certifying Officer with the same filing and expiration dates, as 
described in paragraphs (a) and (b) of this section, as the original 
approved labor certification.
    6. Revise Sec.  656.31 to read as follows:


Sec.  656.31  Labor certification applications involving fraud, willful 
misrepresentation, or violations of this part.

    The following provisions apply to applications filed under both 
this regulation and the regulation in effect prior to March 28, 2005, 
and to any certifications resulting from those applications:
    (a) Possible fraud or willful misrepresentation. If the Department 
discovers an employer, attorney, or agent is involved in possible fraud 
or willful misrepresentation in connection with the permanent labor 
certification program, the Department will refer the matter to DHS for 
investigation, and send a copy of the referral to the Department of 
Labor's Office of Inspector General. DOL may suspend processing of any 
permanent labor certification application involving such employer, 
attorney, or agent until completion of any investigation and/or 
judicial proceedings. If 180 days pass without the filing of a criminal 
indictment or information, the initiation of judicial proceedings, or 
receipt of a notification from DHS, DOL OIG, or other appropriate 
authority that an investigation is being conducted, the Certifying 
Officer may continue to process some or all of the applications, or may 
continue the suspension in processing until completion of any 
investigation and/or judicial proceeding. A Certifying Officer may deny 
any application for permanent labor certification if the officer finds 
the application contains false statements, is fraudulent, or was 
otherwise submitted in violation of the DOL permanent labor 
certification regulations.
    (b) Criminal indictment or information. If DOL learns an employer, 
attorney, or agent is named in or under investigation connected to a 
criminal indictment or information in connection with the permanent 
labor certification program, the processing of any applications related 
to that employer, attorney, or agent may be halted until the judicial 
process is completed. Unless the employer is under investigation, the 
Department must provide written notification to the employer of the 
suspension in processing.
    (c) No finding of fraud or willful misrepresentation. If an 
employer, attorney, or agent is acquitted of fraud or willful 
misrepresentation charges, or if such criminal charges are withdrawn or 
otherwise fail to result in a finding of fraud or willful 
misrepresentation, the Certifying Officer shall decide each pending 
permanent labor certification application related to that employer, 
attorney, or agent on the merits of the application.
    (d) Finding of fraud or willful misrepresentation. If an employer, 
attorney, or agent is found to have committed fraud or willful 
misrepresentation involving the permanent labor certification program, 
whether by a court, the Department of State or DHS as referenced in 
Sec.  656.30(d), or through other proceedings:
    (1) Any suspension of processing of pending applications related to 
that employer, attorney, or agent will terminate.
    (2) The certifying officer will decide each such application on the 
merits, and may deny any such application as provided in Sec.  656.24.
    (3) In the case of a pending application involving an attorney or 
agent who is the subject of a finding of fraud or willful 
misrepresentation, DOL may notify the employer associated with that 
application of the finding and require the employer to notify DOL in 
writing, within 30 days of the notification, of whether the employer 
will withdraw the application, designate a new attorney or agent, or 
continue the application without representation. Failure of the 
employer to respond within 30 days of the notification will result in a 
denial. If the employer elects to continue representation by the 
attorney or agent, DOL will suspend processing of affected applications 
while debarment proceedings are conducted under subsection (e).

[[Page 7664]]

    (e) Debarment. (1) The Chief, Division of Foreign Labor 
Certification, may issue to an employer, attorney, agent, or any 
combination thereof, a Notice of Debarment from the permanent labor 
certification program for a reasonable period of no more than three 
years, based upon any action that was improper or prohibited at the 
time the action occurred, upon determining the employer, attorney, and/
or agent has participated in or facilitated:
    (i) The sale, barter, or purchase of permanent labor applications 
or certifications, or any other action prohibited under Sec.  656.12;
    (ii) The provision of false or inaccurate information in applying 
for permanent labor certification;
    (iii) Failure to comply with the terms of the ETA Form 9089 or ETA 
Form 750;
    (iv) Failure to comply in the audit process pursuant to Sec.  
656.20;
    (v) Failure to comply in the supervised recruitment process 
pursuant to Sec.  656.21; or
    (vi) Conduct resulting in a determination by a court, the DHS or 
the Department of State of fraud or willful misrepresentation involving 
a permanent labor certification application, as referenced in Sec.  
656.31(d).
    (2) The notice shall be in writing, shall state the reason for the 
debarment finding, the start and end dates of the debarment, and shall 
identify appeal opportunities under Sec.  656.26. Debarment shall take 
effect on the start date indicated unless a request for review is filed 
within the time permitted by Sec.  656.26. DOL will coordinate with DHS 
and the Department of State regarding any Notice of Debarment.
    (f) False Statements. To knowingly and willingly furnish any false 
information in the preparation of the Application for Permanent 
Employment Certification (ETA Form 9089) or the Application for Alien 
Employment Certification (ETA Form 750) and any supporting 
documentation, or to aid, abet, or counsel another to do so is a 
Federal offense, punishable by fine or imprisonment up to five years, 
or both under 18 U.S.C. 2 and 1001. Other penalties apply as well to 
fraud or misuse of ETA immigration documents and to perjury with 
respect to such documents under 18 U.S.C. 1546 and 1621.

    Signed in Washington, DC, this 6th day of February, 2006.
Emily Stover DeRocco,
Assistant Secretary, Employment and Training Administration.
[FR Doc. 06-1248 Filed 2-10-06; 8:45 am]
BILLING CODE 4510-30-P




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