Source: 43 FR 10313, Mar. 10, 1978, unless otherwise noted.
(a) This subpart applies to applications for temporary alien
agricultural labor certification filed before June 1, 1987, and to
applications for temporary alien labor certification for logging
employment.
(b) An employer who desires to use foreign workers for temporary
employment must file a temporary labor certification application
including a job offer for U.S. workers with a local office of a State
employment service agency. The employer should file an application a
minimum of 80 days before the estimated date of need for the workers. If
filed 80 days before need, sufficient time is allowed for the 60-day
recruitment period required by the regulations and a determination by
the Regional Administrator (RA) as to the availability of U.S. workers
20 days before the date of need. Shortly after the application has been
filed, the RA makes a determination as to whether or not the application
has been filed in enough time to recruit U.S. workers and whether or not
the job offer for U.S. workers offers wages and working conditions which
will not adversely affect the wages and working conditions
of similarly employed U.S. workers, as prescribed in the regulations in
this subpart. If the application does not meet the regulatory wage and
working condition standards, the RA shall deny the temporary labor
certification application and offer the employer an administrative-
judicial review of the denial by a Department of Labor Hearing Officer.
If the application is not timely, the RA has discretion, as set forth in
these regulations, to either deny the application or permit the process
to proceed reasonably with the employer recruiting U.S. workers upon
such terms as will accomplish the purposes of the INA and the INS
regulations. Where the application is timely and meets the regulatory
standards, the State employment service agency, the employer, and the
Department of Labor recruit U.S. workers for 60 days. At the end of the
60 days, the RA grants the temporary labor certification if the RA finds
that (1) the employer has not offered foreign workers higher wages or
better working conditions (or less restrictions) than that offered to
U.S. workers, and (2) U.S. workers are not available for the employer's
job opportunities. If the temporary labor certification is denied, the
employer may seek an administrative-judicial review of the denial by a
Department of Labor Hearing Officer as provided in these regulations.
The Department of Labor thereafter advises the Immigration and
Naturalization Service (INS) of approvals and denials of temporary labor
certifications. The INS may accept or reject this advice. 8 CFR
214.2(h)(3). The INS makes the final decision as to whether or not to
grant visas to the foreign workers. 8 U.S.C. 1184(a).
(c) Definitions for terms used in this subpart. Administrator means
the chief official of the United States Employment Service or the
Administrator's designee.
Adverse effect rate means the wage rate which the Administrator has
determined must be offered and paid to foreign and U.S. workers for a
particular occupation and/or area so that the wages of similarly
employed U.S. workers will not be adversely affected. The Administrator
may determine that the prevailing wage rate in the area and/or
occupation is the adverse effect rate, if the use (or non-use) of aliens
has not depressed the wages of similarly employed U.S. workers. The
Administrator may determine that a wage rate higher than the prevailing
wage rate is the adverse effect rate if the Administrator determines
that the use of aliens has depressed the wages of similarly employed
U.S. workers.
Agent means a legal person, such as an association of employers,
which (1) is authorized to act as an agent of the employer for temporary
labor certification purposes, and (2) which is not itself an employer,
or a joint employer, as defined in this section.
Area of intended employment means the area within normal commuting
distance of the place (address) of intended employment. If the place of
intended employment is within a Standard Metropolitan Statistical Area
(SMSA), any place within the SMSA is deemed to be within normal
commuting distance of the place of intended employment.
Employer means a person, firm, corporation or other association or
organization (1) which currently has a location within the United States
to which U.S. workers may be referred for employment, and which proposes
to employ a worker at a place within the United States and (2) which has
an employer relationship with respect to employees under this subpart as
indicated by the fact that it hires, pays, fires, supervises and
otherwise controls the work of such employees. An association of
employers shall be considered an employer if it has all of the indicia
of an employer set forth in this definition. Such an association,
however, shall be considered as a joint employer with the employer
member if it shares with the employer member one or more of the
definitional indicia.
Employment and Training Administration (ETA) means the agency within
the Department of Labor (DOL) which includes the United States
Employment Service (USES).
Hearing Officer means a Department of Labor official, whether
Administrative Law Judge or Hearing Officer, who is authorized to
conduct administrative hearings.
Immigration and Naturalization Service (INS) means the component of
the U.S.
Department of Justice which makes the determination under the
Immigration and Nationality Act (INA) on whether or not to grant a visa
to an alien seeking to perform temporary agricultural or logging work in
the United States.
Job opportunity means a job opening for temporary, full-time
employment at a place in the United States to which U.S. workers can be
referred.
Local office means an office of a State employment service agency
which serves a particular geographic area within a State.
Regional Administrator, Employment and Training Administration (RA)
means the chief official of the Employment and Training Administration
(ETA) in a Department of Labor (DOL) regional office.
Secretary means the Secretary of Labor or the Secretary's designee.
State agency means the State employment service agency.
Temporary labor certification means the advice given by the
Secretary of Labor to the Immigration and Naturalization Service,
pursuant to the regulations of that agency at 8 CFR 214.2(h)(3)(i), that
(1) there are not sufficient U.S. workers who are qualified and
available to perform the work and (2) the employment of the alien will
not adversely affect the wages and working conditions of similarly
employed U.S. workers.
United States Employment Service (USES) means the agency of the U.S.
Department of Labor, established under the Wagner-Peyser Act of 1933,
which is charged with administering the national system of public
employment offices and carrying out the functions of the Secretary under
the Immigration and Nationality Act.
United States workers means any worker who, whether U.S. national,
citizen or alien, is legally permitted to work permanently within the
United States.
(Approved by the Office of Management and Budget under control number
1205-0015)
[43 FR 10313, Mar. 10, 1978, as amended at 49 FR 18295, Apr. 30, 1984;
52 FR 20524, June 1, 1987]
