(a)(1) The Office of Foreign Labor Certification Administrator
(OFLC Administrator) is the National Certifying Officer. The OFLC
Administrator and the certifying officers in the ETA application
processing centers have the authority to certify or deny labor
certification applications.
(2) If the labor certification presents a special or unique
problem, the Director of an ETA application processing center may refer
the matter to the Office of Foreign Labor Certification Administrator
(OFLC Administrator). If the OFLC Administrator has directed that
certain types of applications or specific applications be handled in
the ETA national office, the Directors of the ETA application
processing centers shall refer such applications to the OFLC
Administrator.
(b) The Certifying Officer makes a determination either to grant or
deny the labor certification on the basis of whether or not:
(1) The employer has met the requirements of this part.
(2) There is in the United States a worker who is able, willing,
qualified, and available for and at the place of the job opportunity.
(i) The Certifying Officer must consider a U.S. worker able and
qualified for the job opportunity if the worker, by education, training,
experience, or a combination thereof, is able to perform in the normally
accepted manner the duties involved in the occupation as customarily
performed by other U.S. workers similarly employed. For the purposes of
this paragraph (b)(2)(i), 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
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during a reasonable period of on-the-job training.
(ii) If the job involves a job opportunity as a college or
university teacher, the U.S. worker must be at least as qualified as the
alien.
(3) The employment of the alien will not have an adverse effect upon
the wages and working conditions of U.S. workers similarly employed. In
making this determination, the Certifying Officer considers such things
as: labor market information, the special circumstances of the industry,
organization, and/or occupation, the prevailing wage in the area of
intended employment, and prevailing working conditions, such as hours,
in the occupation.
(c) The Certifying Officer shall notify the employer in writing
(either electronically or by mail) of the labor certification
determination.
(d) If a labor certification is granted, except for a labor
certification for an occupation on Schedule A (Sec. 656.5) or for
employment as a sheepherder under Sec. 656.16, the Certifying Officer
must send the certified application and complete Final Determination
form to the employer, or, if appropriate, to the employer's agent or
attorney, indicating the employer may file all the documents with the
appropriate DHS office.
(e) If the labor certification is denied, the Final Determination
form will:
(1) State the reasons for the determination;
(2) Quote the request for review procedures at Sec. 656.26 (a) and
(b);
(3) Advise that failure to request review within 30 days of the date
of the determination, as specified in Sec. 656.26(a), constitutes a
failure to exhaust administrative remedies;
(4) Advise that, if a request for review is not made within 30 days
of the date of the determination, the denial shall become the final
determination of the Secretary;
(5) Advise that if an application for a labor certification is
denied, and a request for review is not made in accordance with the
procedures at Sec. 656.26(a) and (b), a new application may be filed at
any time; and
(6) Advise that a new application in the same occupation for the
same alien can not be filed while a request for review is pending with
the Board of Alien Labor Certification Appeals.
(f) If the Certifying Officer determines the employer substantially
failed to produce required documentation, or the documentation was
inadequate, or determines a material misrepresentation was made with
respect to the application, or if the Certifying Officer determines it
is appropriate for other reasons, the employer may be required to
conduct supervised recruitment pursuant to Sec. 656.21 in future
filings of labor certification applications for up to two years from the
date of the Final Determination.
(g)(1) The employer may request reconsideration within 30 days from
the date of issuance of the denial.
(2) The request for reconsideration may not include evidence not
previously submitted.
(3) The Certifying Officer may, in his or her discretion, reconsider
the determination or treat it as a request for review under Sec.
656.26(a).
