(a) Filing of applications. A request for a labor certification on
behalf of any alien who is required by the Act to be a beneficiary of a
labor certification in order to obtain permanent resident status in the
United States may be filed as follows:
(1) Except as provided in paragraphs (a)(2), (3), and (4) of this
section, an employer seeking a labor certification must file under this
section and Sec. 656.17.
(2) An employer seeking a labor certification for a college or
university teacher must apply for a labor certification under this
section and must also file under either Sec. 656.17 or Sec. 656.18.
(3) An employer seeking labor certification for an occupation listed
on Schedule A must apply for a labor certification under this section
and Sec. 656.15.
(4) An employer seeking labor certification for a sheepherder must
apply for a labor certification under this section and must also choose
to file under either Sec. 656.16 or Sec. 656.17.
(b) Representation. (1) Employers may have agents or attorneys
represent them throughout the labor certification process. If an
employer intends to be represented by an agent or attorney, the employer
must sign the statement set forth on the Application for Permanent
Employment Certification form: That the attorney or agent is
representing the employer and the employer takes full responsibility for
the accuracy of any representations made by the attorney or agent.
Whenever, under this part, any notice or other document is required to
be sent to the employer, the document will be sent to the attorney or
agent who has been authorized to represent the employer on the
Application for Permanent Employment Certification form.
(2)(i) It is contrary to the best interests of U.S. workers to have
the alien and/or agents or attorneys for either the employer or the
alien participate in interviewing or considering U.S. workers for the
job offered the alien. As the beneficiary of a labor certification
application, the alien can not represent the best interests of U.S.
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workers in the job opportunity. The alien's agent and/or attorney can
not represent the alien effectively and at the same time truly be
seeking U.S. workers for the job opportunity. Therefore, the alien and/
or the alien's agent and/or attorney may not interview or consider U.S.
workers for the job offered to the alien, unless the agent and/or
attorney is the employer's representative, as described in paragraph
(b)(2)(ii) of this section.
(ii) The employer's representative who interviews or considers U.S.
workers for the job offered to the alien must be the person who normally
interviews or considers, on behalf of the employer, applicants for job
opportunities such as that offered the alien, but which do not involve
labor certifications.
(3) No person under suspension or disbarment from practice before
any court or before the DHS or the United States Department of Justice's
Executive Office for Immigration Review is permitted to act as an agent,
representative, or attorney for an employer and/or alien under this
part.
(c) Attestations. The employer must certify to the conditions of
employment listed below on the Application for Permanent Employment
Certification under penalty of perjury under 18 U.S.C. 1621 (2). Failure
to attest to any of the conditions listed below results in a denial of
the application.
(1) The offered wage equals or exceeds the prevailing wage
determined pursuant to Sec. 656.40 and Sec. 656.41, and the wage the
employer will pay to the alien to begin work will equal or exceed the
prevailing wage that is applicable at the time the alien begins work or
from the time the alien is admitted to take up the certified employment;
(2) The wage offered is not based on commissions, bonuses or other
incentives, unless the employer guarantees a prevailing wage paid on a
weekly, bi-weekly, or monthly basis that equals or exceeds the
prevailing wage;
(3) The employer has enough funds available to pay the wage or
salary offered the alien;
(4) The employer will be able to place the alien on the payroll on
or before the date of the alien's proposed entrance into the United
States;
(5) The job opportunity does not involve unlawful discrimination by
race, creed, color, national origin, age, sex, religion, handicap, or
citizenship;
(6) The employer's job opportunity is not:
(i) Vacant because the former occupant is on strike or locked out in
the course of a labor dispute involving a work stoppage;
(ii) At issue in a labor dispute involving a work stoppage.
(7) The job opportunity's terms, conditions and occupational
environment are not contrary to Federal, state or local law;
(8) The job opportunity has been and is clearly open to any U.S.
worker;
(9) The U.S. workers who applied for the job opportunity were
rejected for lawful job-related reasons;
(10) The job opportunity is for full-time, permanent employment for
an employer other than the alien.
(d) Notice. (1) In applications filed under Sec. Sec. 656.15
(Schedule A), 656.16 (Sheepherders), 656.17 (Basic Process), 656.18
(College and University Teachers), and 656.21 (Supervised Recruitment),
the employer must give notice of the filing of the Application for
Permanent Employment Certification and be able to document that notice
was provided, if requested by the Certifying Officer, as follows:
(i) To the bargaining representative(s) (if any) of the employer's
employees in the occupational classification for which certification of
the job opportunity is sought in the employer's location(s) in the area
of intended employment. Documentation may consist of a copy of the
letter and a copy of the Application for Permanent Employment
Certification form that was sent to the bargaining representative.
(ii) If there is no such bargaining representative, by posted notice
to the employer's employees at the facility or location of the
employment. The notice must be posted for at least 10 consecutive
business days. The notice must be clearly visible and unobstructed while
posted and must be posted in conspicuous places where the employer's
U.S. workers can readily read the posted notice on their way to or from
their place of employment. Appropriate locations for posting notices
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of the job opportunity include locations in the immediate vicinity of
the wage and hour notices required by 29 CFR 516.4 or occupational
safety and health notices required by 29 CFR 1903.2(a). In addition, the
employer must publish the notice in any and all in-house media, whether
electronic or printed, in accordance with the normal procedures used for
the recruitment of similar positions in the employer's organization. The
documentation requirement may be satisfied by providing a copy of the
posted notice and stating where it was posted, and by providing copies
of all the in-house media, whether electronic or print, that were used
to distribute notice of the application in accordance with the
procedures used for similar positions within the employer's
organization.
(2) In the case of a private household, notice is required under
this paragraph (d) only if the household employs one or more U.S.
workers at the time the application for labor certification is filed.
The documentation requirement may be satisfied by providing a copy of
the posted notice to the Certifying Officer.
(3) The notice of the filing of an Application for Permanent
Employment Certification must:
(i) State the notice is being provided as a result of the filing of
an application for permanent alien labor certification for the relevant
job opportunity;
(ii) State any person may provide documentary evidence bearing on
the application to the Certifying Officer of the Department of Labor;
(iii) Provide the address of the appropriate Certifying Officer; and
(iv) Be provided between 30 and 180 days before filing the
application.
(4) If an application is filed under Sec. 656.17, the notice must
contain the information required for advertisements by Sec. 656.17(f),
must state the rate of pay (which must equal or exceed the prevailing
wage entered by the SWA on the prevailing wage request form), and must
contain the information required by paragraph (d)(3) of this section.
(5) If an application is filed on behalf of a college and university
teacher selected in a competitive selection and recruitment process, as
provided by Sec. 656.18, the notice must include the information
required for advertisements by Sec. 656.18(b)(3), and must include the
information required by paragraph (d)(3) of this section.
(6) If an application is filed under the Schedule A procedures at
Sec. 656.15, or the procedures for sheepherders at Sec. 656.16, the
notice must contain a description of the job and rate of pay, and must
meet the requirements of this section.
(e)(1)(i) Submission of evidence. Any person may submit to the
Certifying Officer documentary evidence bearing on an application for
permanent alien labor certification filed under the basic labor
certification process at Sec. 656.17 or an application involving a
college and university teacher selected in a competitive recruitment and
selection process under Sec. 656.18.
(ii) Documentary evidence submitted under paragraph (e)(1)(i) of
this section may include information on available workers, information
on wages and working conditions, and information on the employer's
failure to meet the terms and conditions for the employment of alien
workers and co-workers. The Certifying Officer must consider this
information in making his or her determination.
(2)(i) Any person may submit to the appropriate DHS office
documentary evidence of fraud or willful misrepresentation in a Schedule
A application filed under Sec. 656.15 or a sheepherder application
filed under Sec. 656.16.
(ii) Documentary evidence submitted under paragraph (e)(2) of this
section is limited to information relating to possible fraud or willful
misrepresentation. The DHS may consider this information under Sec.
656.31.
(f) Retention of documents. Copies of applications for permanent
employment certification filed with the Department of Labor and all
supporting documentation must be retained by the employer for 5 years
from the date of filing the Application for Permanent Employment
Certification.
