Act means the Immigration and Nationality Act, as amended, 8 U.S.C.
1101 et seq.
Agent means a person who is not an employee of an employer, and who
has been designated in writing to act on behalf of an alien or employer
in connection with an application for labor certification.
Applicant means a U.S. worker (see definition of U.S. worker below)
who is applying for a job opportunity for which an employer has filed an
Application for Permanent Employment Certification (ETA Form 9089).
Application means an Application for Permanent Employment
Certification submitted by an employer (or its agent or attorney) in
applying for a labor certification under this part.
Area of intended employment means the area within normal commuting
distance of the place (address) of intended employment. There is no
rigid measure of distance which constitutes a normal commuting distance
or normal commuting area, because there may be widely varying factual
circumstances among different areas (e.g., normal commuting distances
might be 20, 30, or 50 miles). If the place of intended employment is
within a Metropolitan Statistical Area (MSA) or a Primary Metropolitan
Statistical Area (PMSA), any place within the MSA or PMSA is deemed to
be within normal commuting distance of the place of intended employment;
however, not all locations within a Consolidated Metropolitan
Statistical Area (CMSA) will be deemed automatically to be within normal
commuting distance. The borders of MSA's and PMSA's are not controlling
in the identification of the normal commuting area; a location outside
of an MSA or PMSA (or a CMSA) may be within normal commuting distance of
a location that is inside (e.g., near the border of) the MSA or PMSA (or
CMSA). The terminology CMSAs and PMSAs are being replaced by the Office
of Management and Budget (OMB). However, ETA will continue to recognize
the use of these area concepts as well as their replacements.
Attorney means any person who is a member in good standing of the
bar of the highest court of any state, possession, territory, or
commonwealth of the United States, or the District of Columbia, and who
is not under suspension or disbarment from practice before any court or
before DHS or the United States Department of Justice's Executive Office
for Immigration Review. Such a person is permitted to act as an agent,
representative, or attorney for an employer and/or alien under this
part.
Board of Alien Labor Certification Appeals (BALCA or Board) means
the permanent Board established by this part, chaired by the Chief
Administrative Law Judge, and consisting of Administrative Law Judges
assigned to the Department of Labor and designated by the Chief
Administrative Law Judge to be members of the Board of Alien Labor
Certification Appeals. The Board of Alien Labor Certification Appeals is
located in Washington, DC, and reviews and decides appeals in
Washington, DC.
Certifying Officer (CO) means a Department of Labor official who
makes determinations about whether or not to grant applications for
labor certifications.
Closely-held Corporation means a corporation that typically has
relatively few shareholders and whose shares are
[[Page 686]]
not generally traded in the securities market.
Employer means:
(1) A person, association, firm, or a corporation that currently has
a location within the United States to which U.S. workers may be
referred for employment and that proposes to employ a full-time employee
at a place within the United States, or the authorized representative of
such a person, association, firm, or corporation. An employer must
possess a valid Federal Employer Identification Number (FEIN). For
purposes of this definition, an ``authorized representative'' means an
employee of the employer whose position or legal status authorizes the
employee to act for the employer in labor certification matters. A labor
certification can not be granted for an Application for Permanent
Employment Certification filed on behalf of an independent contractor.
(2) Persons who are temporarily in the United States, including but
not limited to, foreign diplomats, intra-company transferees, students,
and exchange visitors, visitors for business or pleasure, and
representatives of foreign information media can not be employers for
the purpose of obtaining a labor certification for permanent employment.
Employment means:
(1) Permanent, full-time work by an employee for an employer other
than oneself. For purposes of this definition, an investor is not an
employee. In the event of an audit, the employer must be prepared to
document the permanent and full-time nature of the position by
furnishing position descriptions and payroll records for the job
opportunity involved in the Application for Permanent Employment
Certification.
(2) Job opportunities consisting solely of job duties that will be
performed totally outside the United States, its territories,
possessions, or commonwealths can not be the subject of an Application
for Permanent Employment Certification.
Employment and Training Administration (ETA) means the agency within
the Department of Labor (DOL) that includes the Office of Foreign
Labor Certification (OFLC).
Immigration Officer means an official of the Department of Homeland
Security, United States Citizenship and Immigration Services (USCIS) who
handles applications for labor certifications under this part.
Job opportunity means a job opening for employment at a place in the
United States to which U.S. workers can be referred.
Nonprofessional occupation means any occupation for which the
attainment of a bachelor's or higher degree is not a usual requirement
for the occupation.
Non-profit or tax-exempt organization for the purposes of Sec.
656.40 means an organization that:
(1) Is defined as a tax exempt organization under the Internal
Revenue Code of 1986, section 501(c)(3), (c)(4), or (c)(6) (26 U.S.C.
501(c)(3), (c)(4) or (c)(6)); and
(2) Has been approved as a tax-exempt organization for research or
educational purposes by the Internal Revenue Service.
Office of Foreign Labor Certification means the organizational
component within the Employment and Training Administration that
provides national leadership and policy guidance and
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develops regulations and procedures to carry out the responsibilities
of the Secretary of Labor under the Immigration and Nationality Act, as
amended, concerning alien workers seeking admission to the United
States in order to work under section 212(a)(5)(A) of the Immigration
and Nationality Act, as amended.
O*NET means the system developed by the Department of Labor,
Employment and Training Administration, to provide to the general public
information on skills, abilities, knowledge, work activities, interests
and specific vocational preparation levels associated with occupations.
O*NET is based on the Standard Occupational Classification system.
Further information about O*NET can be found at http://
www.onetcenter.org.
Prevailing wage determination (PWD) means the prevailing wage
provided by the State Workforce Agency.
Professional occupation means an occupation for which the attainment
of a bachelor's or higher degree is a usual education requirement. A
beneficiary
[[Page 687]]
of an application for permanent alien employment certification involving
a professional occupation need not have a bachelor's or higher degree to
qualify for the professional occupation. However, if the employer is
willing to accept work experience in lieu of a baccalaureate or higher
degree, such work experience must be attainable in the U.S. labor market
and must be stated on the application form. If the employer is willing
to accept an equivalent foreign degree, it must be clearly stated on the
Application for Permanent Employment Certification form.
Secretary means the Secretary of Labor, the chief official of the
U.S. Department of Labor, or the Secretary's designee.
Secretary of Homeland Security means the chief official of the U.S.
Department of Homeland Security or the Secretary of Homeland Security's
designee.
Secretary of State means the chief official of the U.S. Department
of State or the Secretary of State's designee.
Specific vocational preparation (SVP) means the amount of lapsed
time required by a typical worker to learn the techniques, acquire the
information, and develop the facility needed for average performance in
a specific job-worker situation. Lapsed time is not the same as work
time. For example, 30 days is approximately 1 month of lapsed time and
not six 5-day work weeks, and 3 months refers to 3 calendar months and
not 90 work days. The various levels of specific vocational preparation
are provided below.
------------------------------------------------------------------------
Level Time
------------------------------------------------------------------------
1............................... Short demonstration.
2............................... Anything beyond short demonstration up
to and including 30 days.
3............................... Over 30 days up to and including 3
months.
4............................... Over 3 months up to and including 6
months.
5............................... Over 6 months up to and including 1
year.
6............................... Over 1 year up to and including 2
years.
7............................... Over 2 years up to and including 4
years.
8............................... Over 4 years up to and including 10
years.
9............................... Over 10 years.
------------------------------------------------------------------------
State Workforce Agency (SWA), formerly known as State Employment
Security Agency (SESA), means the state agency that receives funds under
the Wagner-Peyser Act to provide prevailing wage determinations to
employers, and/or administers the public labor exchange delivered
through the state's one-stop delivery system in accordance with the
Wagner-Peyser Act.
United States, when used in a geographic sense, means the 50 states,
the District of Columbia, Puerto Rico, the U.S. Virgin Islands, and
Guam.
United States worker means any worker who is:
(1) A U.S. citizen;
(2) A U.S. national;
(3) Lawfully admitted for permanent residence;
(4) Granted the status of an alien lawfully admitted for temporary
residence under 8 U.S.C. 1160(a), 1161(a), or 1255a(a)(1);
(5) Admitted as a refugee under 8 U.S.C. 1157; or
(6) Granted asylum under 8 U.S.C. 1158.
