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ADMINISTRATIVE POLICY FOR TEMPORARY ALIEN EMPLOYMENT CERTIFICATION ON GUAM
I. Purpose. To establish operating policies and procedures for implementing the Governor's authority to make determinations on temporary labor certification applications for the Territory of Guam.
II. Authority. Immigration and Naturalization Service regulations at 8 CFR 214.2(h)(3)(ii) vest the Governor of Guam, or the Governor's designated representative within the Territorial Government, with authority to issue temporary labor certifications of Guam Pursuant to section 101(a)(15)(H)(ii) of the Immigration and Nationality Act. 8 U.S.C. 1101(a)(15)(H)(ii).
Every petitioner must attach to every nonimmigrant visa petition to classify an alien under section
of the Act for employment on Guam either a certification from the Governor of Guam, or the Governor's designated representative within the Territorial Government, stating that qualified residents in the United States are not available to perform the required services and that the employment of a nonimmigrant alien will not adversely affect the wages and working conditions of United States resident workers who are similarly employed on Guam, or a notice detailing the reasons why the required certification c
annot be made.
Appendix - 2
III. Definitions of Terms
A. "Application" means an Application for Alien Employment Certification, Form GDOL 750 and any other documents submitted by an employer (or his/her attorney or agent) in applying for a temporary labor certification under this Administrative Policy.
B. "Apprentice" means a United States citizen or a lawful resident alien who learns a craft through planned, supervised on-the-job training in conjunction with planned related technical instruction and is covered by a written agreement registered with the Guam Community College and United States Department of Labor, Bureau of Apprenticeship and Training.
C. "Contractor" means one who contracts on predetermined terms to provide labor and materials and to be responsible for construction jobs in accordance with plans and specifications.
D. "Department of Labor" refers to the Government of Guam, Department of Labor.
E. "Employer" means a person, firm, corporation or other organization which currently has a location within the Territory of Guam to which United States workers may referred for employment, or the authorized representative of such a person, firm or corporation. Such entities must be duly licensed to conduct business on Guam.
F. "Guam Community College (GCC)" means an agency under Government of Guam responsible for the administration of the Apprenticeship Training Program (ATP) registered with the United States Department of Labor, Bureau of Apprenticeship and Training and other vocational training for the Territory of Guam.
G. "Guam Employment Service" means an agency of the Guam Department of Labor which serves the Territory of Guam by providing placement and other services of the job service system.
H. "Job Order" describes Form GES 514 which is required to test the availability of United States workers through the employment service system.
I. "Job Opportunity" means a full-time opening for employment on Guam to which United States workers can be referred.
J. "Nonimmigrant Alien Temporary Worker" means an alien having residence in a foreign country which he has no intention of abandoning, who is coming temporarily to the United States to perform temporary services or labor if an unemployed person capable of performing such services or labor cannot be found in this country.
K. "Part-time employment" means a job requiring hours or days of work less than those normal or prevailing for the occupation in the area of intended employment, e.g., less than seven hours a day or 35 hours a week.
L. "Similarly employed" means employed in an occupation which requires the same or similar level of education, training, and experience as the occupation for which certification is requested.
M. "Temporary employment" means a job which is limited to a definite period of time with an end relatively well fixed in time by some identified, definite event or change. It does not relate to the individual who will perform the duties or to a job that is permanent in nature.
N. "Temporary Labor Certification" means the determination by the Governor of Guam or the designated representative within the Territorial Government that (1) there are not sufficient United States workers who are qualified and available to perform the work and (2) the employment of the alien will not adversely affect the wages and working conditions of similarly employed United States workers on Guam.
O. "United States" means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the Virgin Islands of the United States.
P. "United States worker" means any worker who, whether United States citizen, national, or alien, is legally permitted to work permanently within the United States.
IV. Operating Guidelines
A. Requests for temporary labor certification may be filed for employment up to, but not exceeding 12 months. If the original intended duration of the temporary employment requires nonimmigrant aliens for a finite period not exceeding three years, or if unforeseen circumstances required an extension of an approved certification, a new application must be submitted for each period beyond one year. Requests for extensions will be processed in the same manner as new applications.
B. More than one alien may be requested on an application if they are to do the same type of services in the same occupation, in the same area of employment during the same period. However, the number requested may not exceed the actual number of job openings.
C. Part-time employment is inappropriate for temporary labor certification.
D. A temporary labor certification is valid only for the number of alien workers, the occupation, the area of employment, the specific activity, the period of time, and the employer specified in the certification.
E. A temporary labor certification is limited to one employer's specific job opportunity; it may not be transferred from one employer to another. A nonimmigrant alien may transfer to another employer only if the new employer obtains a labor certification and an approved petition from the Immigration and Naturalization service.
V. Employer Assurances
A. During the period for which the temporary labor certification is granted, the employer will comply with the Administrative Policy, applicable Federal and local laws and regulations.
B. The job opening(s) actually exist and that no qualified United States workers will be displaced as a result of the application for alien employment certification.
C. Reasonable efforts have been and will continue to be made by the employer to obtain United States workers at prevailing wages and working conditions no less favorable than those offered to aliens.
D. The job offer is open to all qualified United States workers without regard to race, color, creed, national origin, age, sex, citizenship, and to United States workers with handicaps who are qualified, willing able, and available to perform the job and will not reject any qualified United States workers on the ground that the employer's supervisory personnel speak a language other than English.
E. The wages, which must be at least equal to the prevailing wage rate for that occupation, and working conditions which will be offered and afforded by the employer to any foreign worker will be identical to those offered and afforded to United States workers.
F. The job opportunity is not:
1) Vacant because the former occupant is on strike or is being locked out in the course of a labor dispute, or
2) At issue in a labor dispute.
G. If the employer provides housing for his employees, it shall be optional on the part of the worker and comply with all applicable Federal and local laws and regulations including building permits, zoning, and other safety and health requirements.
H. The employer shall charge workers no more than actual costs for meals and lodging. This amount should not exceed $80.00 per week, and any excess cost thereof must be supported by proper documentation.
I. The employer will provide each worker with a copy of the worker's employment contract in English, and, if the worker is not literate in English, the contract provided shall be language in which the worker is literate, and a copy shall be made available to the Guam Department of Labor.
J. Benefits, terms, and conditions of employment offered to alien workers, e.g., costs of transportation, bonuses, and insurance shall be offered to United States workers who apply for the job opportunity.
K. All other factors being equal, where there is a reduction in force, the employer agrees to terminate the alien nonimmigrant workers first in those job classifications in which are United States workers.
L. It is contrary to the best interests of United States workers to have the alien, and/or agents or attorneys for the alien, participate in interviewing or considering United States workers for the job offered the alien. As the beneficiary of a labor certification applications the alien cannot represent the best interest of United States workers in the job opportunity. The alien's agent and/or attorney cannot represent the alien effectively and at the same time truly be seeking United States workers for
the job opportunity. Therefore, the alien and/or the alien's agent and/or attorney may not interview or consider United States workers for the job offered to the alien.
M. The employer's representative who interviews or considers United States workers for the job offered to the alien shall be the person who normally interviews or considers, on behalf of the employer, applicants for job opportunities.
N. No person under suspension or disbarment from practice before the United Stated Department of Justice's Board of Immigration Appeals pursuant to
8 CFR 292.3
shall be permitted to act as an agent or attorney for an employer under the Part.
VI. Processing Procedures
A. To apply for a temporary labor certification, the employer must file an Application for Alien Employment Certification with the Guam Department of Labor, Alien Labor Processing and Certification Division (GALPC) at least 40 days before the worker's services are needed. A separate application must be filed for each occupation.
B. The application shall include:
1) An original and two copies of Form GDOL 750, Application for Alien Employment certification, Offer of Employment, each bearing the original signature of the employer;
2) A statement of employer assurances, contained in section V of this Administrative Policy, executed by the employer;
3) A statement explaining the temporary nature of the job;
4) A copy of the employment contract used to negotiate with and later signed by workers;
5) A completed agent authorization on Form GDOL 750, if the employer is represented by an agent;
6) A Notice of Appearance on INS Form G-28, if the employer is represented by an attorney;
7) Results of any recruitment conducted prior to filing the application;
8) All corrections or changes to documents submitted must be initialed by the employer or his authorized representatives (agent or attorney).
C. The GALPC shall review the application for completeness and adherence to Territorial and Federal requirements and shall also determine the prevailing wages for the occupation according to section VII of this Administrative Policy. a wage offer below the prevailing wage would affect the wages of similarly employed United States workers on Guam.
D. The GALPC shall notify the employer in writing of any deficiencies in the application and return the application for changes or additional information. when a complete application is received, GALPC shall notify the employer to place a job order and advertisement.
E. The employer shall place a job order (GES 514) with the Guam Employment Service to recruit United States workers at least 30 days in advance of the need for services and provide a copy to the GALPC. The job order shall include the same information shown on GDOL 750 and shall remain active until a determination is made on the employer's application.
F. In conjunction with the job order, the employer shall advertise the job opportunity for three consecutive working days in the newspaper of largest circulation on Guam and provide a copy to GALPC. The advertisement shall contain the specifies of the job opportunity including the duties, requirements, wage offer, and fringe benefits. It shall direct interested applicants to apply at the Guam Employment Service for referral to the employer and shall not identify the employer's name, address, and telephon
G. The employer shall provide GALPC with written results of all recruitment to include the source of recruitment; names and addresses of United States workers who applied for the job; the job-related reasons why each worker was not hired for the job; and the names of United States workers who were hired.
H. After the application processing is completed, the Governor or the authorized representative shall grant or deny the labor certification.
VII. Methodology for Determining Prevailing Wages
A. The prevailing wage shall be the average rate of wages paid to similarly employed workers on Guam.
B. Effective July 1, 1985, prevailing wage rates for all occupations will be based on survey data collected by the Guam government. Whenever necessary, the data will be supplemented with data from the Bureau of Labor Standards (BLS) if BLS covers occupations or industries not surveyed by the Guam government. The survey shall include a representative mixture of types and sizes of establishments found in private industry and the Federal and Guam governments. The prevailing rate shall be computed by totali
ng the wages paid to all similarly employed workers and dividing by the number of such workers. In the computation, the private Government of Guam, and Federal sectors shall be weighted in the proportion that they exist in Guam's economy.
A. The Governor of Guam or the authorized representative shall determine whether to grant or to deny the temporary labor certification, or to issue a notice that the required certification cannot be made based on whether or not:
1) United States workers are available for the temporary employment opportunity.
a) The Governor or authorized representative, in judging if a United States worker is available for the temporary employment opportunity, shall consider the documented results of the employer's recruitment efforts.
b) To determine if a United States worker is available, the Governor or authorized representative shall consider United States workers on Guam, and may also consider United States workers who are willing to move from elsewhere to take the job at their own expense, or at the employer's expense, if the prevailing practice among employers who employ workers in the occupation is to pay such relocation expenses, or if the employer will pay travel expenses for the alien(s).
c) The Governor or authorized representative shall consider a United States worker able and qualified for the job opportunity if the worker, by education, training, experience, or a combination thereof, can perform the duties involved in the occupation as customarily performed by other United States workers similarly employed and is willing to accept the specific job opportunity.
2) The employment of the alien will adversely affect wages and working conditions of United States workers similarly employed. To determine this, the Governor or authorized representative shall consider such things as labor market information, special circumstances of the industry, organization, and/or occupation, the prevailing wage rate for the occupation in the area of intended employment, and prevailing working conditions, such as hours in the occupation.
3) The job opportunity contains requirements or conditions which preclude consideration of United States workers or which otherwise prevent their effective recruitment.
B. A temporary labor certification may be issued for the duration of the temporary employment opportunity, not to exceed twelve (12) months. If the temporary job opportunity extends beyond 12 months, the employer must file a new application; however, temporary certifications may not be granted for the same job opportunity for a total period (including extensions) of more than three years.
C. Dates on the temporary labor certification shall be the beginning and ending dates of certified employment and the date certification was granted. The beginning date of certified employment may not be earlier than the date certification was granted.
IX. Document Transmittal
A. Whenever, under this Administrative Policy, any notice or other document is required to be sent to an employer, the document shall be sent to the attorney who has filed a notice of appearance on INS Form G-28 or the employer's authorized agent, if the employer has an attorney or agent.
B. After making a temporary labor certification determination, the Governor or authorized representative, shall notify the employer, in writing of the determination.
C. If the labor certification is granted, the Governor or authorized representative, shall send the certified application containing the official temporary labor certification stamp, supporting documents, and completed Temporary Determination Form to the employer or, if appropriate, the employer's agent or attorney. The Temporary Determination Form shall indicate that the employer should submit all documents together with the employer's petition to the appropriate INS office.
D. If the labor certification is denied or a notice is issued that certification cannot be made, the Governor or authorized representative shall return a copy of the Application for alien Employment Certification form, supporting documents, and completed Temporary Determination form to the employer, or if appropriate, to the employer's agent or attorney. The Temporary Determination form shall indicate specific bases on which the decision was made not to issue a temporary labor certification, and shall adv
ise the employer of the right to appeal to the INS.
X. Appeal of a Denial or Notice that a Certification cannot be made
A. The granting or denial or a temporary labor certification by the Governor or authorized representative, or a finding that a certification cannot be made, is final. administrative appeal is made to INS, as set forth below.
B. Under the Act and regulations of the Immigration and Naturalization Service, the Governor's role is advisory. The Attorney General has the sole authority for the final approval or denial of a petition for temporary alien employment. The employer can submit countervailing evidence to the Immigration and Naturalization Service, according to
8 CFR 214.2(h)(3)(ii)
, that qualified persons in the United States are not available, that wages and working conditions of United States workers will not be adversely affected, and that the Governor of Guam's employment policies were observed.
XI. Invalidation of Temporary Labor Certifications
A. A temporary labor certification issued by the Governor of Guam or authorized representative may be invalidated by an INS district director if it is determined by the district director or a court of law that the certification request involved fraud or willful misrepresentation. A temporary labor certification can also be invalidated if the district director determines that the certification was improvidently issued.
B. If the district director intends to invalidate a temporary labor certification, a notice of intent shall be served upon the employer, detailing the reasons for the intended invalidation. The employer shall have ten days in which to file a written response in rebuttal of the notice of intent. The district director shall consider all evidence submitted upon rebuttal in reaching a decision.
C. An employer may appeal the invalidation of a temporary labor certification in accordance with
8 CFR, Part 103