(a) Local office activities. The local office, using the job offer
portion of the H-2A application, shall promptly prepare a local job
order and shall begin to recruit U.S. workers in the area of intended
employment. The RA should notify the State or local office by telephone
no later than seven calendar days after the application was received by
the RA if the application has been accepted for consideration. Upon
receiving such notice or seven calendar days after the application is
received by the local office, whichever is earlier, the local office
shall promptly prepare an agricultural clearance order which
will permit the recruitment of U.S. workers by the Employment Service
System on an intrastate and interstate basis.
(b) Regional office activities. The RA, upon receipt of the H-2A
application, shall promptly review the application to determine whether
it is acceptable for consideration under the timeliness and adverse
effect criteria of Secs. 655.101-655.103 of this part. If the RA
determines that the application does not meet the requirements of
Secs. 655.101-655.103, the RA shall not accept the application for
consideration on the grounds that the availability of U.S. workers
cannot be adequately tested because the benefits, wages and working
conditions do not meet the adverse effect criteria; however, if the RA
determines that the application is not timely in accordance with
Sec. 655.101 of this part and that neither the first-year employer
provisions of Sec. 655.101(c)(5) nor the emergency provisions of
Sec. 655.101(f) apply, the RA may determine not to accept the
application for consideration because there is not sufficient time to
test the availability of U.S. workers.
(c) Rejected applications. If the application is not accepted for
consideration, the RA shall notify the applicant in writing (by means
normally assuring next-day delivery) within seven calendar days of the
date the application was received by the RA with a copy to the local
office. The notice shall:
(1) State all the reasons the application is not accepted for
consideration, citing the relevant regulatory standards;
(2) Offer the applicant an opportunity for the resubmission within
five calendar days of a modified application, stating the modifications
needed in order for the RA to accept the application for consideration;
(3) Offer the applicant an opportunity to request an expedited
administrative review of or a de novo administrative hearing before an
administrative law judge of the nonacceptance; the notice shall state
that in order to obtain such a review or hearing, the employer, within
seven calendar days of the date of the notice, shall file by facsimile
(fax), telegram, or other means normally assuring next day delivery a
written request to the Chief Administrative Law Judge of the Department
of Labor (giving the address) and simultaneously serve a copy on the RA;
the notice shall also state that the employer may submit any legal
arguments which the employer believes will rebut the basis of the RA's
action; and
(4) State that if the employer does not request an expedited
administrative-judicial review or a de novo hearing before an
administrative law judge within the seven calendar days no further
consideration of the employer's application for temporary alien
agricultural labor certification will be made by any DOL official.
(d) Appeal procedures. If the employer timely requests an expedited
administrative review or de novo hearing before an administrative law
judge pursuant to paragraph (c)(3) of this section, the procedures at
Sec. 655.112 of this part shall be followed.
(e) Required modifications. If the application is not accepted for
consideration by the RA, but the RA's written notification to the
applicant is not timely as required by Sec. 655.101 of this part, the
certification determination will not be extended beyond 20 calendar days
before the date of need. The notice will specify that the RA's temporary
alien agricultural labor certification determination will be made no
later than 20 calendar days before the date of need, provided that the
applicant submits the modifications to the application which are
required by the RA within five calendar days and in a manner specified
by the RA which will enable the test of U.S. worker availability to be
made as required by Sec. 655.101 of this part within the time available
for such purposes.
[42 FR 45899, Sept. 13, 1977, as amended at 59 FR 41875, Aug. 15, 1994]
