(a) If the RA, in accordance with Sec. 655.205 has determined that
the employer has complied with the recruitment assurances, the RA, by
60th day of the recruitment period, or 20 days before the date of need
specified in the application, whichever is later, shall grant the
temporary labor certification for enough aliens to fill the employer's
job opportunities for which U.S. workers are not available. In making
this determination the RA shall consider as available for a job
opportunity any U.S. worker who has made a firm commitment to work for
the employer, including those workers committed by other authorized
persons such as farm labor contractors and family heads; such a firm
commitment shall be considered to have been made not only by workers who
have signed work contracts with the employer, but also by those whom the
RA determines are very likely to sign such a work contract. The RA shall
also count as available any U.S. worker who has applied to the employer
(or on whose behalf an application has been made), but who was rejected
by the employer for other than lawful job-related related reasons unless
the RA determines that:
(1) Enough qualified U.S. workers have been found to fill all the
employer's job opportunities; or
(2) The employer, since the time of the initial determination under
Sec. 655.204, has adversely affected U.S. workers by offering to, or
agreeing to provide to, alien workers better wages,
working conditions, or benefits (or by offering or agreeing to impose on
alien workers less obligations and restrictions) than that offered to
U.S. workers.
(b) (1) Temporary labor certifications shall be considered subject
to the conditions and assurances made during the application process.
Temporary labor certifications shall be for a limited duration such as
for ``the 1978 apple harvest season'' or ``until November 1, 1978'', and
they shall never be for more than eleven months. They shall be limited
to the employer's specific job opportunities; therefore, they may not be
transferred from one employer to another.
(2) If an association of employers is itself the employer, as
defined in Sec. 655.200, certifications shall be made to the association
and may be used for any of the job opportunities of its employer members
and workers may be transferred among employer members.
(3) If an association of employers is a joint employer with its
employer members, as defined in Sec. 655.200, the certification shall be
made jointly to the association and the employer members. In such cases
workers may be transferred among the employer members provided the
employer members and the association agree in writing to be jointly and
severally liable for compliance with the temporary labor certification
obligations set forth in this subpart.
(c) If the RA denies the temporary labor certification in whole or
part, the RA shall notify the employer in writing by means normally
assuring next-day delivery. The notice shall contain all of the
statements required in Sec. 655.204(d). If a timely request is made for
an administrative-judicial review by a DOL Hearing Officer, the
procedures of Sec. 655.212 shall be followed.
(d) (1) After a temporary labor certification has been granted, the
employer shall continue its efforts to actively recruit U.S. workers
until the foreign workers have departed for the employer's place of
employment. The employer, however, must keep an active job order on file
until the assurance at Sec. 655.203(e) is met.
(2) The ES system shall continue to actively recruit and refer U.S.
workers as long as there is an active job order on file.
[43 FR 10313, Mar. 10, 1978, as amended at 59 FR 41876, Aug. 15, 1995]
