(a) Within two working days after the temporary labor certification
application has been filed with it, the local office shall mail the
duplicate application directly to the appropriate RA.
(b) The local office, using the job offer portion of its copy of the
temporary labor certification application, shall promptly prepare a
local job order and shall begin to recruit U.S. workers in the area of
intended employment.
(c) The RA, upon receipt of the duplicate temporary labor
certification application, shall promptly review the application to
determine whether it meets the requirements of Secs. 655.201-655.203 in
order to determine whether the employer's application is (1) timely, and
(2) contains offers of wages, benefits, and working conditions required
to ensure that similarly employed U.S. workers will not be adversely
affected. If the RA determines that the temporary labor certification
application is not timely in accordance with Sec. 655.201 of this
subpart, the RA may promptly deny the temporary labor certification on
the grounds that, in accordance with that regulation, there is not
sufficient time to adequately test the availability of U.S. workers. If
the RA determines that the application does not meet the requirements of
Secs. 655.202-655.203 because the wages, working conditions, benefits,
assurances, job offer, etc. are not as required, the RA shall deny the
certification on the grounds that the availability of U.S. workers
cannot be adequately tested because the wages or benefits, etc. do not
meet the adverse effect criteria.
(d) If the certification is denied, the RA shall notify the employer
in writing of the determination, with a copy to the local office and the
Administrator. The notice shall:
(1) State the reasons for the denial, citing the relevant
regulations; and
(2) Offer the employer an opportunity to request an expedited
administrative-judicial review of the denial by a Department of Labor
(DOL) Hearing Officer. The notice shall state that in order to obtain
such a review, the employer must, within five calendar days of the date
of the notice, file by facsimile (fax), telegram, or other means
normally assuring next day delivery a written request for such a review
to the Chief Administrative Law Judge of the Department of Labor (giving
the address) and simultaneously serve a copy on the Regional
Administrator. The notice shall also state that the employer's request
for review should contain any legal arguments which the employer
believes will rebut the basis of the RA's denial of certification; and
(3) State that, if the employer does not request an expedited
administrative-judicial review before a DOL Hearing Officer within the
five days:
(i) The RA will advise the INS that the certification cannot be
granted, giving the reasons therefor, and that an administrative-
judicial review of the denial was offered to the employer but not
accepted, and enclosing, for INS review, the entire temporary labor
certification application file; and
(ii) The employer has the opportunity to submit evidence to the INS
to rebut the bases of the RA's determination in accordance with the INS
regulation at 8 CFR 214.2(h)(3)(i) but that no further review of the
employer's application for temporary labor certification may be made by
any Department of Labor official.
(e) If the employer timely requests an expedited administrative-
judicial review pursuant to paragraph (d)(2) of this section, the
procedures of Sec. 655.212 shall be followed.
[43 FR 10313, Mar. 10, 1978, as amended at 59 FR 41876, Aug. 15, 1994]
