(a) Description of the Act. The Act (8 U.S.C. 1101 et seq.)
regulates the admission of aliens into the United States. The Act
designates the Secretary of Homeland Security and the Secretary of State
as the principal administrators of its provisions.
(b) Burden of proof under the Act. Section 291 of the Act (8 U.S.C.
1361) provides, in pertinent part, that:
Whenever any person makes application for a visa or any other
documentation required for entry, or makes application for admission, or
otherwise attempts to enter the United States, the burden of proof shall
be upon such person to establish that he is eligible to receive such
visa or such document, or is not subject to exclusion under any
provision of this Act * * *.
(c)(1) Role of the Department of Labor. The permanent labor
certification role of the Department of Labor under the Act derives from
section 212(a)(5)(A) (8 U.S.C. 1182(a)(5)(A)), which provides that any
alien who seeks admission or status as an immigrant for the purpose of
employment under paragraph (2) or (3) of section 203(b) of the Act may
not be admitted unless the Secretary of Labor has first certified to the
Secretary of State and to the Secretary of Homeland Security that:
(i) There are not sufficient United States workers who are able,
willing, qualified, and available at the time of application for a visa
and admission to the United States and at the place where the alien is
to perform such skilled or unskilled labor; and
(ii) The employment of such alien will not adversely affect the
wages and working conditions of workers in the United States similarly
employed.
(2) This certification is referred to in this part 656 as a ``labor
certification.''
(3) We certify the employment of aliens in several instances: For
the permanent employment of aliens under
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this part; and for temporary employment of aliens for agricultural and
nonagricultural employment in the United States classified under 8
U.S.C. 1101(a)(15)(H)(ii), under the DHS regulation at 8 CFR 214.2(h)(5)
and (6) and sections 101(a)(15)(H)(ii), 214, and 218 of the Act. See 8
U.S.C. 1101(a)(15)(H)(ii), 1184, and 1188. We also administer labor
attestation and labor condition application programs for the admission
and/or work authorization of the following nonimmigrants: Specialty
occupations and fashion models (H-1B visas), specialty occupations from
countries with which the U.S. has entered agreements listed in the INA
(H-1B1 visas), registered nurses (H-1C visas), and crewmembers
performing longshore work (D visas), classified under 8 U.S.C.
1101(a)(15)(H)(i)(b), 1101(a)(15)(H)(i)(b1), 1101(a)(15)(H)(i)(c), and
1101(a)(15)(D), respectively. See also 8 U.S.C. 1184(c), (m), and (n),
and 1288.
