[Federal Register Volume 66, Number 150 (Friday, August 3, 2001)]
[Rules and Regulations]
[Pages 40584-40590]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-19465]
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DEPARTMENT OF LABOR
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.
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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
States.
EFFECTIVE DATE: The amendments contained in this final rule will take
effect on September 4, 2001.
FOR FURTHER INFORMATION CONTACT: Contact Dale M. Ziegler, Chief,
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).
SUPPLEMENTARY INFORMATION:
[[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
that:
[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
processed.
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,
2001.
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.
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\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.
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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
1995.
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
statement.
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
conditions.
Final Rule
Accordingly, part 656 of chapter V of title 20 of the Code of
Federal Regulations is amended as follows:
PART 656--[AMENDED]
1. The authority citations for Part 656 is revised 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.
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]
BILLING CODE 4510-30-P