DOL Memo on Measures for Increasing Efficiency in Labor Certification Process

Date: October 1, 1996

Directive: General Administrative Letter No. 1-97

To: All State Employment Security Agencies

From: Barbara Ann Farmer Administrator for Regional Management

Subject: Measures for Increasing Efficiency in the Permanent Labor Certification Process

1. Purpose. To provide procedural guidance to State Employment Security Agencies (SESAs) and Regional Offices for increasing efficiency in the permanent labor certification process under current regulations in order to handle increasing workload with declining staff resources.

2. Reference. 20 CFR Part 656, Technical Assistance Guide (TAG) No. 656 Labor Certifications, and GAL No. 15-95.

3. Background. Over the past 18 months, the Employment and Training Administration (ETA) has been considering proposals for reengineering the permanent labor certification process in order to increase efficiency in processing, reduce costs, increase protections for U. S. workers, and provide better customer service. To fully achieve all of these reengineering objectives, legislative and/or regulatory changes to the current labor certification process are required. The prospect for legislative changes is speculative, at best, and modification of the regulations could take many months to effectuate.

Currently, ETA and SESAs are experiencing increasing workloads and declining staff resources to process labor certification applications. Therefore, to the extent feasible, ETA must institute measures to increase efficiency which are achievable under current regulations in order to reduce large backlogs and make decisions in a timely manner.

4. Action Required. Administrators are requested to:

A. Provide the attached policy and procedural guidance to appropriate staff.

B. Insure that appropriate staff attend training conducted by the appropriate regional office prior to implementation of these measures.

C. Instruct alien labor certification staff to implement the measures for increasing efficiency and follow the procedures in processing permanent labor certification applications.

D. Apply these procedures to applications when processing begins on or after the effective date of this GAL.

5. Effective Date. October 1, 1996

6. Inquiries. Direct questions to the appropriate Regional Certifying Officer.

7. Attachment. Increasing Efficiency in the Permanent Labor Certification Process.

Attachment To GAL No. 1-97

Increasing Efficiency In The Permanent Labor Certification Process

A. Introduction

In order to increase efficiency, the measures below shall be implemented under current regulations at 20 CFR 656 by Regions and State Employment Security Agencies (SESAs) on October 1, 1996. These measures are designed to significantly reduce U.S. worker referrals on jobs that are tailored around the qualifications of aliens, to reduce SESA and regional office backlogs, and to allow regions and SESAs to handle increasing workloads in a timely manner with fewer staff.

To promote consistency among Regions and SESAs, operating procedures have been provided for handling applications involving unduly restrictive job requirements, reduction in recruitment, and limited review processing. Depending on local situations, other efficiency measures may be implemented by the Regional Certifying Officer.

B. Measures to Increase Efficiency

1. Unduly Restrictive Job Requirements

The SESA should not authorize recruitment to commence on applications which contain restrictive job requirements, or requirements which did not exist before the alien was hired. Applications where the employer refuses to remove such requirements will be sent immediately to the Certifying Officer for processing in the order they are received along with other applications. Employers who do not wish to delete the restrictive requirement will be requested by the SESA to submit documentation of business necessity which will be included in the transmittal to the Certifying Officer. The business necessity justification should address the job opportunity as described in the application as it existed prior to the hiring of the alien. If this is not the case, the employer should document that a major change in its business operation caused the position to be created after the alien was hired. Jobs which did not exist before the alien was hired will be considered jobs that are not truly open to U.S. workers, unless the employer can clearly demonstrate that a major change in the business operation caused the position to be created after the alien was hired.

2. Reduction in Recruitment Requests (RIRs)

Regions and SESAs will encourage reduction in recruitment requests on applications:

- for occupations for which there is little or no availability,

- which have no restrictive requirements,

- which meet prevailing wage,

- and for which the employer can show adequate recruitment through sources normal to the occupation and industry within the previous 6 months.

RIR requests will be given expedited processing by SESAs and Regional Offices.

3. Notice of Findings (NOF) Extensions

After issuing a NOF, Certifying Officers will grant only one extension of time beyond the initial 35 days in which the employer can file a rebuttal. The extension may be granted up to 35 days. Further extensions will not be granted.

4. Harmless Error

Certifying Officers will have the discretion to excuse a harmless error on the part of the employer to fully comply with the regulations if the Certifying Officer determines that the labor market was sufficiently tested to warrant a finding that qualified U.S. workers are not available for the job opportunity and employment of the alien will not adversely effect wages and working conditions of U.S. workers similarly employed. A finding of harmless error will be made by the Certifying Officer on a case-by-case basis and no finding sets a precedent for another case.

5. Limited Review Processing

Certifying Officers may work with their SESAs to set up a system to identify and flag applications that are ready for transmittal to the region and apparently have no processing problems. Such applications may not have special job requirements, unusual job duties, applicant availability, or wage issues. Based on the recommendation of the SESA, such cases will generally be approved as they are received in the region with minimal review. For quality control purposes, a small number of cases in various occupations will be randomly selected for a more extensive review.

6. Resume Screening

Because all job requirements will have been thoroughly evaluated prior to recruitment, SESA staff shall screen resumes of U.S. workers only against the accepted job requirements. Only those resumes of fully qualified applicants shall be sent to the employer and to the regional office. Recruitment on an application will cease after it is forwarded to the Regional Office. Late resumes may be sent to employers having similar job offers or returned to applicants. After labor certification has been issued, resumes will be discarded. Regions shall retain resumes of qualified applicants when a NOF or Final Determination has been issued.

7. Standardized Recruitment

When the Certifying Officer requires the employer, through a NOF, to recruit again because of deficiencies in the first recruitment, the employer shall be instructed to place a 1-day Sunday advertisement in an appropriate newspaper of general circulation. The ad must run in conjunction with a 10-day job order placed by the SESA. This reduced level of recruitment may not be used by employers who have never recruited for the position, or when the Certifying Officer has determined that a trade or professional journal is the most appropriate advertising medium.

8. Advertisements

Because the SESA will not have sufficient time to review a draft ad once a job order has been placed, SESAs are only required to assist in drafting the text or reviewing a draft ad for accuracy if the ad is submitted with an initial or resubmitted application.

9. Applicant Questionnaires

Because of budgetary constraints at the SESAs and Regional Offices, SESAs should no longer send questionnaires to U.S. workers who were interviewed as the result of the labor certification process.

C. Operating Procedures

1. Unduly Restrictive Job Requirements

a. The SESA will review each permanent labor certification application to determine if there are any unduly restrictive requirements.

b. The SESA will notify the employer of any unduly restrictive requirements and inform the employer that recruitment will not commence until the employer removes the restrictive requirement. If the employer is unwilling to remove the requirement, the employer should submit appropriate documentation of business necessity.

Employers will be instructed to provide information requested by the SESA within 45 days of the date of the request. If complete information is not received within 45 days, the application will be returned to the employer. If it is refiled, it will be treated as a new application with the original date of receipt deleted and replaced with the refiling date.

c. The SESA will also request, as part of the business necessity documentation, that the employer provide documentation to show that the job existed and was previously filled at the same requirements before the alien was hired. The employer may submit documentation including but not limited to position descriptions, organizational charts and payroll records, etc. Alternatively, the employer may show that there was a major change in the business operation which caused the job to be created after hiring the alien.

d. The SESA shall inform the employer that, in the event the requirements are not removed as requested by the SESA, the application, documentation, and business necessity justification will be forwarded to the region for review in the order that it is received along with other applications.

e. The Certifying Officer shall remand the application to the SESA for full recruitment if the business necessity justification is acceptable. The application will be given expedited processing at the SESA and at the regional office following the recruitment.

f. The Certifying Officer will issue a Notice of Findings (NOF) on the application if the business necessity justification is not acceptable.

g. If the rebuttal to the NOF is satisfactory, the application will be remanded to the SESA for full recruitment. The application will be given expedited processing at the SESA and at the regional office following the recruitment.

h. If the rebuttal is not acceptable, a Final Determination denying the application will be sent to the employer.

2. Reduction in Recruitment Requests (RIRs)

a. An employer may file a reduction in recruitment request for any occupation, except those listed on Schedule B, if the employer can show that an adequate test of the labor market has occurred at prevailing wages and working conditions through sources normal to the occupation and industry within the previous 6 months.

b. SESAs and Certifying Officers will encourage requests for reduction in recruitment in occupations with little or no availability and in circumstances as determined by individual Certifying Officers.

c. Upon receiving an employer's written request for a reduction in recruitment, the SESA shall review the application for completeness and determine the appropriate prevailing wage.

d. The SESA shall return the application to the employer for correction and/or additional information if there are deficiencies in the application, such as inadequate wage offer or restrictive job requirements.

e. When there are deficiencies in the application that would have affected the recruitment, the SESA should advise the employer that it is unlikely that the Certifying Officer will approve an RIR and suggest that the employer recruit through the regular process. However, the SESA may not discourage the use of RIR nor refuse to transmit a written request for an RIR to the Certifying Officer.

f. When transmitting the RIR to the Certifying Officer, the SESA should include a recommendation, based on its knowledge of the labor market, for or against granting the request.

g. The RIR will be given expedited processing at the region if it contains no deficiencies. Those with deficiencies identified by the SESA shall be processed in the order that they are received along with other applications.

h. Among the factors to be considered by the Certifying Officer in making determinations on RIRs pursuant to section 20 CFR 656.24 are the following:

* Adequacy of the recruitment conducted by the employer applicant, e.g., newspaper advertising, job fairs, internet.

* Documentation of normal recruitment practices in the industry and occupation furnished by the employer.

* Availability of U.S. workers for the occupation involved in the employer's application for which recruitment has been conducted through the SESA in the past, as shown by ES referrals to job orders.

* SESA recommendations/comments.

* Certifying Officer's knowledge of the local labor market.

If RIR is denied because the recruitment is not acceptable, the application shall be returned to-the SESA for regular processing in the order in which it is received along with other applications.

i. If the RIR request contains deficiencies, such as inadequate wage offer or restrictive job requirements, the Certifying Officer shall issue a NOF denying the RIR and citing the deficiencies.

3. Limited Review Processing

a. At his or her discretion, the Certifying Officer, may establish a process for making expedited determinations on applications based on the recommendations of the SESA. Such SESA recommendations must be in accordance with guidelines established in advance by the Certifying Officer.

b. Limited review processing shall apply to applications which offer the prevailing wage, have no special requirements or job duties, do not exceed the Specific Vocational Preparation level assigned to the job, and have no applicant availability or a few applicants who clearly do not meet the job's requirements.

c. Applications may be designated for limited review processing only after completion of recruitment. The SESA will assemble an application package for Regional processing as follows and affix a limited review ("LR") to the file:

* One copy of the ETA 7147 - State Agency Transmittal

* One copy of the G-28 - Notice of Appearance of Attorney

* Two sets of the ETA 750, Parts A & B, for Alien Employment Certification and one back-up copy of Part B

* One copy of correspondence and other documentation

* One copy of the SESA Job Order

* One copy of the Internal Job Posting

* One copy of all three Advertisements

* One copy of the Recruitment Results

* One copy of the Resumes

d. For the most part, applications which meet limited review criteria will be expedited for approval when they are received in the Regional Office. Some applications will be randomly selected for review for quality control and SESA training purposes.