(a) (1) An employer who anticipates a labor shortage of workers for
agricultural or logging employment may request a temporary labor
certification for temporary foreign workers by filing, or by having an
agent file, in duplicate, a temporary labor certification application,
signed by the employer, with a local office in the area of intended
employment.
(2) If the temporary labor certification application is filed by an
agent, however, the agent may sign the application if the application is
accompanied by a letter from each employer the agent represents, signed
by the employer, which authorizes the agent to act on the employer's
behalf and which states that the employer assumes full responsibility
for the accuracy of the application, for all representations made by the
agent on the employer's behalf, and for the fulfillment of all legal
requirements arising under this subpart.
(3) If an association of employers files the application, the
association shall identify and submit documents to verify whether, in
accordance with the definitions at Sec. 655.200, it is: (i) The
employer, (ii) a joint employer with its member employers, or (iii) the
agent of its employer members.
(b) Every temporary labor certification application shall include:
(1) A copy of the job offer which will be used by the employer (or
each employer) for the recruitment of both U.S. and foreign workers. The
job offer for each employer shall state the number of workers needed by
the employer, and shall be signed by the employer. The job offer shall
comply with the requirements of Secs. 655.202 and 653.108 of this
chapter;
(2) The assurances required by Sec. 655.203; and
(3) The specific estimated date of need of workers.
(c) The entire temporary labor certification application shall be
filed with the local office in duplicate and in sufficient time to allow
the State agency to attempt to recruit U.S. workers locally and through
the Employment Service intrastate and interstate clearance system for 60
calendar days prior
to the estimated date of need. Section 655.206 requires the RA to grant
or deny the temporary labor certification application by the end of the
60 calendar days, or 20 days from the estimated date of need, whichever
is later. That section also requires the RA to offer employers an
expedited administrative-judicial review in cases of denials of the
temporary labor certification applications. Following an administrative-
judicial review, the employer has a right to contest any denial before
the INS pursuant to 8 CFR 214.2(h)(3)(i). Finally, employers need time,
after the temporary labor certification determination, to complete the
process for bringing foreign workers into the United States, or to bring
an appeal of a denial of an application for the labor certification.
Therefore, employers should file their temporary labor certification
applications at least 80 days before the estimated date of need
specified in the application.
(d) Applications may be amended at any time prior to RA
determination to increase the number of workers requested in the
original application for labor certification by not more than 15 percent
without requiring an additional recruitment period for U.S. workers.
Requests for increases beyond 15 percent may be approved only when it is
determined that, based on past experience, the need for additional
workers could not be foreseen and that a critical need for the workers
would exist prior to the expiration of an additional recruitment period.
(e) If a temporary labor certification application, or any part
thereof, does not satisfy the time requirements specified in paragraph
(c) of this section, and if the exception in paragraph (d) of this
section does not apply, the local office shall immediately send both
copies directly to the appropriate Regional Administrator (RA). The RA
may then advise the employer and the INS in writing that the temporary
labor certification cannot be granted because, pursuant to the
regulations at paragraph (c) of this section, there is not sufficient
time to test the availability of U.S. workers. The notice of denial to
the employer shall inform the employer of the right to administrative-
judicial review and to ultimately petition INS for the admission of the
aliens. In emergency situations, however, the RA may waive the time
period specified in this section on behalf of employers who have not
made use of temporary alien workers for the prior year's harvest or for
other good and substantial cause, provided the RA has sufficient labor
market information to make the labor certification determinations
required by 8 CFR 214.2(h)(3)(i).
(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]
