(a) Filing applications. (1) Except as otherwise provided by
Sec. Sec. 656.15, 656.16, and 656.18, an employer who desires to apply
for a labor certification on behalf of an alien must file a completed
Department of Labor Application for Permanent Employment Certification
form (ETA Form 9089). The application must be filed with an ETA
application processing center. Incomplete applications will be denied.
Applications filed and certified electronically must, upon receipt of
the labor certification, be signed immediately by the employer in order
to be valid. Applications submitted by mail must contain the original
signature of the employer, alien, attorney, and/or agent when they are
received by the application processing center. DHS will not process
petitions unless they are supported by an original certified ETA Form
9089 that has been signed by the employer, alien, attorney and/or agent.
(2) The Department of Labor may issue or require the use of certain
identifying information, including user identifiers, passwords, or
personal identification numbers (PINS). The purpose of these personal
identifiers is to allow the Department of Labor to associate a given
electronic submission with a single, specific individual. Personal
identifiers can not be issued to a company or business. Rather, a
personal identifier can only be issued to specific individual. Any
personal identifiers must be used solely by the individual to whom they
are assigned and can not be used or transferred to any other individual.
An individual assigned a personal identifier must take all reasonable
steps to ensure that his or her personal identifier can not be
compromised. If an individual assigned a personal identifier suspects,
or becomes aware, that his or her personal identifier has been
compromised or is being used by someone else, then the individual must
notify the Department of Labor immediately of the incident and cease the
electronic transmission of any further submissions under that personal
identifier until such time as a new personal identifier is provided. Any
electronic transmissions submitted with a personal identifier will be
presumed to be a submission by the individual assigned that personal
identifier. The Department of Labor's system will notify those making
submissions of these requirements at the time of each submission.
(3) Documentation supporting the application for labor certification
should not be filed with the application, however in the event the
Certifying Officer notifies the employer that its application is to be
audited, the employer must furnish required supporting documentation
prior to a final determination.
(b) Processing. (1) Applications are screened and are certified, are
denied, or are selected for audit.
(2) Employers will be notified if their applications have been
selected for audit by the issuance of an audit letter under Sec.
656.20.
(3) Applications may be selected for audit in accordance with
selection criteria or may be randomly selected.
(c) Filing date. Non-electronically filed applications accepted for
processing shall be date stamped. Electronically filed applications will
be considered filed when submitted.
(d) Refiling Procedures. (1) Employers that filed applications under
the regulations in effect prior to March 28, 2005, may, if a job order
has not been placed pursuant to those regulations, refile such
applications under this part without loss of the original filing date
by:
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(i) Submitting an application for an identical job opportunity after
complying with all of the filing and recruiting requirements of this
part 656; and
(ii) Withdrawing the original application in accordance with ETA
procedures. Filing an application under this part stating the employer's
desire to use the original filing date will be deemed to be a withdrawal
of the original application. The original application will be deemed
withdrawn regardless of whether the employer's request to use the
original filing date is approved.
(2) Refilings under this paragraph must be made within 210 days of
the withdrawal of the prior application.
(3) A copy of the original application, including amendments, must
be sent to the appropriate ETA application processing center when
requested by the CO under Sec. 656.20.
(4) For purposes of paragraph (d)(1)(i) of this section, a job
opportunity shall be considered identical if the employer, alien, job
title, job location, job requirements, and job description are the same
as those stated in the original application filed under the regulations
in effect prior to March 28, 2005. For purposes of determining identical
job opportunity, the original application includes all accepted
amendments up to the time the application was withdrawn, including
amendments in response to an assessment notice from a SWA pursuant to
Sec. 656.21(h) of the regulations in effect prior to March 28, 2005.
(e) Required pre-filing recruitment. Except for labor certification
applications involving college or university teachers selected pursuant
to a competitive recruitment and selection process (Sec. 656.18),
Schedule A occupations (Sec. Sec. 656.5 and 656.15), and sheepherders
(Sec. 656.16), an employer must attest to having conducted the
following recruitment prior to filing the application:
(1) Professional occupations. If the application is for a
professional occupation, the employer must conduct the recruitment steps
within 6 months of filing the application for alien employment
certification. The employer must maintain documentation of the
recruitment and be prepared to submit this documentation in the event of
an audit or in response to a request from the Certifying Officer prior
to rendering a final determination.
(i) Mandatory steps. Two of the steps, a job order and two print
advertisements, are mandatory for all applications involving
professional occupations, except applications for college or university
teachers selected in a competitive selection and recruitment process as
provided in Sec. 656.18. The mandatory recruitment steps must be
conducted at least 30 days, but no more than 180 days, before the filing
of the application.
(A) Job order. Placement of a job order with the SWA serving the
area of intended employment for a period of 30 days. The start and end
dates of the job order entered on the application shall serve as
documentation of this step.
(B) Advertisements in newspaper or professional journals. (1)
Placing an advertisement on two different Sundays in the newspaper of
general circulation in the area of intended employment most appropriate
to the occupation and the workers likely to apply for the job
opportunity and most likely to bring responses from able, willing,
qualified, and available U.S. workers.
(2) If the job opportunity is located in a rural area of intended
employment that does not have a newspaper with a Sunday edition, the
employer may use the edition with the widest circulation in the area of
intended employment.
(3) The advertisements must satisfy the requirements of paragraph
(f) of this section. Documentation of this step can be satisfied by
furnishing copies of the newspaper pages in which the advertisements
appeared or proof of publication furnished by the newspaper.
(4) If the job involved in the application requires experience and
an advanced degree, and a professional journal normally would be used to
advertise the job opportunity, the employer may, in lieu of one of the
Sunday advertisements, place an advertisement in the professional
journal most likely to bring responses from able, willing, qualified,
and available U.S. workers. Documentation of this step can be satisfied
by providing a copy of the page in which the advertisement appeared.
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(ii) Additional recruitment steps. The employer must select three
additional recruitment steps from the alternatives listed in paragraphs
(e)(1)(ii)(A)-(J) of this section. Only one of the additional steps may
consist solely of activity that took place within 30 days of the filing
of the application. None of the steps may have taken place more than 180
days prior to filing the application.
(A) Job fairs. Recruitment at job fairs for the occupation involved
in the application, which can be documented by brochures advertising the
fair and newspaper advertisements in which the employer is named as a
participant in the job fair.
(B) Employer's Web site. The use of the employer's Web site as a
recruitment medium can be documented by providing dated copies of pages
from the site that advertise the occupation involved in the application.
(C) Job search Web site other than the employer's. The use of a job
search Web site other than the employer's can be documented by providing
dated copies of pages from one or more website(s) that advertise the
occupation involved in the application. Copies of web pages generated in
conjunction with the newspaper advertisements required by paragraph
(e)(1)(i)(B) of this section can serve as documentation of the use of a
Web site other than the employer's.
(D) On-campus recruiting. The employer's on-campus recruiting can be
documented by providing copies of the notification issued or posted by
the college's or university's placement office naming the employer and
the date it conducted interviews for employment in the occupation.
(E) Trade or professional organizations. The use of professional or
trade organizations as a recruitment source can be documented by
providing copies of pages of newsletters or trade journals containing
advertisements for the occupation involved in the application for alien
employment certification.
(F) Private employment firms. The use of private employment firms or
placement agencies can be documented by providing documentation
sufficient to demonstrate that recruitment has been conducted by a
private firm for the occupation for which certification is sought. For
example, documentation might consist of copies of contracts between the
employer and the private employment firm and copies of advertisements
placed by the private employment firm for the occupation involved in the
application.
(G) Employee referral program with incentives. The use of an
employee referral program with incentives can be documented by providing
dated copies of employer notices or memoranda advertising the program
and specifying the incentives offered.
(H) Campus placement offices. The use of a campus placement office
can be documented by providing a copy of the employer's notice of the
job opportunity provided to the campus placement office.
(I) Local and ethnic newspapers. The use of local and ethnic
newspapers can be documented by providing a copy of the page in the
newspaper that contains the employer's advertisement.
(J) Radio and television advertisements. The use of radio and
television advertisements can be documented by providing a copy of the
employer's text of the employer's advertisement along with a written
confirmation from the radio or television station stating when the
advertisement was aired.
(2) Nonprofessional occupations. If the application is for a
nonprofessional occupation, the employer must at a minimum, place a job
order and two newspaper advertisements within 6 months of filing the
application. The steps must be conducted at least 30 days but no more
that 180 days before the filing of the application.
(i) Job order. Placing a job order with the SWA serving the area of
intended employment for a period of 30 days. The start and end dates of
the job order entered on the application serve as documentation of this
step.
(ii) Newspaper advertisements. (A) Placing an advertisement on two
different Sundays in the newspaper of general circulation in the area of
intended employment most appropriate to the occupation and the workers
likely to apply for the job opportunity.
(B) If the job opportunity is located in a rural area of intended
employment that does not have a newspaper that
[[Page 696]]
publishes a Sunday edition, the employer may use the newspaper edition
with the widest circulation in the area of intended employment.
(C) Placement of the newspaper advertisements can be documented in
the same way as provided in paragraph (e)(1)(i)(B)(3) of this section
for professional occupations.
(D) The advertisements must satisfy the requirements of paragraph
(f) of this section.
(f) Advertising requirements. Advertisements placed in newspapers of
general circulation or in professional journals before filing the
Application for Permanent Employment Certification must:
(1) Name the employer;
(2) Direct applicants to report or send resumes, as appropriate for
the occupation, to the employer;
(3) Provide a description of the vacancy specific enough to apprise
the U.S. workers of the job opportunity for which certification is
sought;
(4) Indicate the geographic area of employment with enough
specificity to apprise applicants of any travel requirements and where
applicants will likely have to reside to perform the job opportunity;
(5) Not contain a wage rate lower than the prevailing wage rate;
(6) Not contain any job requirements or duties which exceed the job
requirements or duties listed on the ETA Form 9089; and
(7) Not contain wages or terms and conditions of employment that are
less favorable than those offered to the alien.
(g) Recruitment report. (1) The employer must prepare a recruitment
report signed by the employer or the employer's representative noted in
Sec. 656.10(b)(2)(ii) describing the recruitment steps undertaken and
the results achieved, the number of hires, and, if applicable, the
number of U.S. workers rejected, categorized by the lawful job related
reasons for such rejections. The Certifying Officer, after reviewing the
employer's recruitment report, may request the U.S. workers' resumes or
applications, sorted by the reasons the workers were rejected.
(2) A U.S. worker is able and qualified for the job opportunity if
the worker can acquire the skills necessary to perform the duties
involved in the occupation during a reasonable period of on-the-job
training. Rejecting U.S. workers for lacking skills necessary to perform
the duties involved in the occupation, where the U.S. workers are
capable of acquiring the skills during a reasonable period of on-the-job
training is not a lawful job-related reason for rejection of the U.S.
workers.
(h) Job duties and requirements. (1) The job opportunity's
requirements, unless adequately documented as arising from business
necessity, must be those normally required for the occupation and must
not exceed the Specific Vocational Preparation level assigned to the
occupation as shown in the O*NET Job Zones. To establish a business
necessity, an employer must demonstrate the job duties and requirements
bear a reasonable relationship to the occupation in the context of the
employer's business and are essential to perform the job in a reasonable
manner.
(2) A foreign language requirement can not be included, unless it is
justified by business necessity. Demonstrating business necessity for a
foreign language requirement may be based upon the following:
(i) The nature of the occupation, e.g., translator; or
(ii) The need to communicate with a large majority of the employer's
customers, contractors, or employees who can not communicate effectively
in English, as documented by:
(A) The employer furnishing the number and proportion of its
clients, contractors, or employees who can not communicate in English,
and/or a detailed plan to market products or services in a foreign
country; and
(B) A detailed explanation of why the duties of the position for
which certification is sought requires frequent contact and
communication with customers, employees or contractors who can not
communicate in English and why it is reasonable to believe the allegedly
foreign-language-speaking customers, employees, and contractors can not
communicate in English.
(3) If the job opportunity involves a combination of occupations,
the employer must document that it has normally employed persons for
that combination of occupations, and/or workers
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customarily perform the combination of occupations in the area of
intended employment, and/or the combination job opportunity is based on
a business necessity. Combination occupations can be documented by
position descriptions and relevant payroll records, and/or letters from
other employers stating their workers normally perform the combination
of occupations in the area of intended employment, and/or documentation
that the combination occupation arises from a business necessity.
(4)(i) Alternative experience requirements must be substantially
equivalent to the primary requirements of the job opportunity for which
certification is sought; and
(ii) If the alien beneficiary already is employed by the employer,
and the alien does not meet the primary job requirements and only
potentially qualifies for the job by virtue of the employer's
alternative requirements, certification will be denied unless the
application states that any suitable combination of education, training,
or experience is acceptable.
(i) Actual minimum requirements. DOL will evaluate the employer's
actual minimum requirements in accordance with this paragraph (i).
(1) The job requirements, as described, must represent the
employer's actual minimum requirements for the job opportunity.
(2) The employer must not have hired workers with less training or
experience for jobs substantially comparable to that involved in the job
opportunity.
(3) If the alien beneficiary already is employed by the employer, in
considering whether the job requirements represent the employer's actual
minimums, DOL will review the training and experience possessed by the
alien beneficiary at the time of hiring by the employer, including as a
contract employee. The employer can not require domestic worker
applicants to possess training and/or experience beyond what the alien
possessed at the time of hire unless:
(i) The alien gained the experience while working for the employer,
including as a contract employee, in a position not substantially
comparable to the position for which certification is being sought, or
(ii) The employer can demonstrate that it is no longer feasible to
train a worker to qualify for the position.
(4) In evaluating whether the alien beneficiary satisfies the
employer's actual minimum requirements, DOL will not consider any
education or training obtained by the alien beneficiary at the
employer's expense unless the employer offers similar training to
domestic worker applicants.
(5) For purposes of this paragraph (i):
(i) The term ``employer'' means an entity with the same Federal
Employer Identification Number (FEIN), provided it meets the definition
of an employer at Sec. 656.3.
(ii) A ``substantially comparable'' job or position means a job or
position requiring performance of the same job duties more than 50
percent of the time. This requirement can be documented by furnishing
position descriptions, the percentage of time spent on the various
duties, organization charts, and payroll records.
(j) Conditions of employment. (1) Working conditions must be normal
to the occupation in the area and industry.
(2) Live-in requirements are acceptable for household domestic
service workers only if the employer can demonstrate the requirement is
essential to perform, in a reasonable manner, the job duties as
described by the employer and there are not cost-effective alternatives
to a live-in household requirement. Mere employer assertions do not
constitute acceptable documentation. For example, a live-in requirement
could be supported by documenting two working parents and young children
in the household, and/or the existence of erratic work schedules
requiring frequent travel and a need to entertain business associates
and clients on short notice. Depending upon the situation, acceptable
documentation could consist of travel vouchers, written estimates of
costs of alternatives such as babysitters, or a detailed listing of the
frequency and length of absences of the employer from the home.
(k) Layoffs. (1) If there has been a layoff by the employer
applicant in the area of intended employment within 6
[[Page 698]]
months of filing an application involving the occupation for which
certification is sought or in a related occupation, the employer must
document it has notified and considered all potentially qualified laid
off (employer applicant) U.S. workers of the job opportunity involved in
the application and the results of the notification and consideration. A
layoff shall be considered any involuntary separation of one or more
employees without cause or prejudice.
(2) For the purposes of paragraph (k)(1) of this section, a related
occupation is any occupation that requires workers to perform a majority
of the essential duties involved in the occupation for which
certification is sought.
(l) Alien influence and control over job opportunity. If the
employer is a closely held corporation or partnership in which the alien
has an ownership interest, or if there is a familial relationship
between the stockholders, corporate officers, incorporators, or
partners, and the alien, or if the alien is one of a small number of
employees, the employer in the event of an audit must be able to
demonstrate the existence of a bona fide job opportunity, i.e., the job
is available to all U.S. workers, and must provide to the Certifying
Officer, the following supporting documentation:
(1) A copy of the articles of incorporation, partnership agreement,
business license or similar documents that establish the business
entity;
(2) A list of all corporate/company officers and shareholders/
partners of the corporation/firm/business, their titles and positions in
the business' structure, and a description of the relationships to each
other and to the alien beneficiary;
(3) The financial history of the corporation/company/partnership,
including the total investment in the business entity and the amount of
investment of each officer, incorporator/partner and the alien
beneficiary; and
(4) The name of the business' official with primary responsibility
for interviewing and hiring applicants for positions within the
organization and the name(s) of the business' official(s) having control
or influence over hiring decisions involving the position for which
labor certification is sought.
(5) If the alien is one of 10 or fewer employees, the employer must
document any family relationship between the employees and the alien. 
