DOL on Special Handling Provisions for College Teachers

This is in response to your letter of April 1, 1993, regarding further clarification of my March 25, 1993, letter regarding the special handling provisions for college and university teachers at Section 20 CFR 656.21a(a)(1) of the labor certification regulations.

In my March 25 letter I advised you, in relevant part, that:

The employer can readvertise under the basic process or under the special handling provisions. The employer is not restricted to refiling under the basic process at 20 CFR 656.21.

You request further clarification of my March 25 letter in view of the fact that a Notice of Finding (NOF) had been issued in the case you are concerned about. Withdrawal of an application after a NOF has been issued is inappropriate. Field Memorandum No. 21-92, dated December 23, 1991, Subject: Monthly Immigration Activity Report for Nonagricultural Program provides, consistent with the labor certification regulations, that issued NOFs are final actions unless rebutted in 35 days. If a rebuttal is not submitted in response to a NOF, the NOF becomes the final decision of the Secretary denying labor certification. As you know, Section 20 CFR 656.29 provides that a new labor certification application by the same employer involving the same occupation cannot be filed until after the expiration of six months from the date of the denial of the labor certification, except that if the certification was denied solely because that wage or salary offered was below the prevailing wage, the employer may refile immediately. This policy applies to all applications to which the Certifying Officer issues a NOF, including applications filed under the special handling provisions for college and university teachers at 20 CFR 656.21a(a)(1).

We are, as of the date of this letter, informing the Regional Office of the advice contained herein.

Flora T. Richardson

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