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PROCEDURES FOR PROCESSING APPLICATIONS FOR CERTIFICATION OF TEMPORARY EMPLOYMENT IN NONAGRICULTURAL OCCUPATIONS IN THE UNITED STATES
Directive: General Administration Letter
To: All State Employment Security Agencies
From: Royal S. Dellinger, Acting Assistant Secretary of Labor
Subject: Procedures for Temporary Labor Certifications in the Entertainment Industry
1. Purpose: To transmit subject procedure.
2. Reference. 20 CFR Parts 621 and 655.
3. Background On May 6, 1983, all regions were provided interim processing and recruitment procedures for temporary applications in the entertainment industry. The attached procedures replace those interim procedures.
4. Action Required Administrators are requested to:
a. Provide attached procedures to appropriate staff.
b. Instruct staff to provide application forms and advise employers of procedures for filing temporary labor certification applications in the entertainment industry.
5. Inquires. Direct questions to the appropriate regional office.
a. Procedures for temporary labor certification in the entertainment industry.
b. List of responsible regional and State Job Service Offices.
c. Map of OSEs and areas covered.
d. List of unions in the entertainment industry.
Expiration date: December 31, 1984.
Procedures for Temporary Labor Certifications in the Entertainment Industry
The Department has been addressing the issue of nonimmigrant aliens coming to the United States for temporary employment in the entertainment industry while high levels of unemployment among U.S. workers in the industry still persist.
The following procedures completely centralize temporary labor certification authority in the entertainment industry in three regions; clarify processing requirements; and ensure uniformity among the responsible regions.
II. Operating Guidelines
A. Decision on application by employers seeking temporary admission of nonimmigrant aliens for temporary employment in entertainment occupations require special considerations, such as:
1. An assessment of requirements of the role or the act to be performed.
2. The need to keep the unity of a group or company and support personnel.
3. The role of labor unions in this highly unionized field and their impact on employment opportunities.
4. The willingness of available U.S. workers to fulfill the employer's prescribed itinerary.
B. Based on factors, such as the need to develop expertise, the concentration of activities for requests for aliens in entertainment, and the proximity of sources that know about the availability of U.S. performers in various entertainment fields, regional certifying officers in New York City, Dallas, and San Francisco are designated as the appropriate officials for issuing determinations on applications for temporary employment of aliens in the entertainment industry.
Published 49 FR 25837, June 25, 1984, 9GAL) No. 5-84 effective December 1, 1983, (GAL) No. 10-84 effective April 23, 1984.
C. Office of the State job services in New York City. Austin and Los Angeles are designated as Offices Specializing in Entertainment (OSEs). These offices shall receive temporary applications in the entertainment industry directly from employers within their jurisdiction for processing, Permanent applications in the entertainment industry, however, are processed by each State agency and the 30 regional offices.
The jurisdictional breakdown is as follows (Also see attached map):
Region OSE States served
New York.............New York City................Region I.
Alien Employment Region II.
Certification Office Region III.
Dallas.................Taxes Employment.........Region V.
Commission Region VI.
Austin Alien Labor Region VII.
San Francisco....Los Angeles Alien...........Region VIII.
D. Canadian musicians who enter the U.S. to perform within a 50-mile area adjacent to the Canadian border for a period 30 days or less are precertified and not subject to these procedures.
E. Pub. L. 97-271 limits temporary employment of entertainers in the Virgin Islands to periods not to exceed 45 days. Therefore, the period of labor certification for such applications may not exceed 45 days.
F. Occupations in the entertainment industry shall include performers and all technical and support personnel involved with a performance.
G. When a job offer contains requirements or conditions which preclude effective recruitment of U.S. workers i.e., there is no employer in the U.S., the OSE shall disregard recruitment procedures below and shall immediately send the application to the certifying officer for determination.
A. Temporary Labor Certification Applications for Aliens in the entertainment industry shall be filed by employers with the OSE serving the area of intended employment (see map of OSE jurisdictions). Note: When the job opportunity requires the work to the performed in more than one OSE jurisdiction, the application should be filed with the OSE having jurisdiction over the area where the employment will begin.
B. To allow for enough recruitment U.S. workers and to give OSEs and regional offices enough processing time, employers should be advised to file their applications at least 45 calendar days before the labor certification is needed. The department of Labor cannot assess a timely determination if the employees provides less time.
C. When field, the temporary application should include:
1. A completed ETA-750, Part A, the offer of employment portion of the application for Alien Employment Certification form signed by the employer.
2. An itenerary of locations and duration of work in each location when there is more than one worksite.
3. Documentation of the employer's efforts, if any, to recruit U.S. workers, and the results.
D. The OSE shall review the application for completeness and determine the prevailing wage, guided by standards in regulations at 20 CFR Part 656.40. The wage survey should be done by telephone contact with union associations, or any other appropriate sources and the prevailing wage should be computed on a daily or weekly basis.
E. The employer must specify a wage which meets or exceeds the daily or weekly rate and covers each day of the work week that the alien is in the United States for the duration of the employment regardless of hours worked.
F. The employer shall advertise the job opportunity before or after filing the application in a national publication that is likely to bring responses from U.S. workers. The advertisement shall:
1. Identify the employer's name, address, and the location of the employment, if other than the employer's location;
2. Describe the job opportunity in detail.
3. State the rate of pay, which shall not be below the prevailing wage for the occupation;
4. Offer prevailing working conditions.
5. State the employer's minimum job requirements;
6. Offer wages, terms, and conditions of employment which are no less favorable than those offered to the alien.
G. The OSE shall write to the appropriate national union(s) (listing enclosed) for availability information and confirmation of the prevailing wage. The following procedures and conditions shall apply to union contacts:
1. The letter to the union shall not identify the employer, but shall describe the type of establishment, the job duties, location and dates of employment, hours of work, wages, and working conditions.
2. From the date the letter to the union is mailed, 10 working days should be allowed to receive a written response. If no response is received after 10 working days, the union should be contacted by telephone to verify if the request was received. If there is availability, 5 additional work days should be allowed for a written response before making a determination based on available information in the application file.
3. Acceptable availability information from unions shall include names, addresses, and telephone numbers of U.S. workers who meet the employer's requirements for the job opportunity.
4. If the union(s) provide names of qualified U.S. workers, the OSE shall refer the list to the employer for direct contact with the applicants.
5. The name of the union, the union representative contacted, and the date of contact must be included on the transmittal form to the regional office for each application.
H. The employer may be required to recruit through other sources which are appropriate for the occupation and customary in the industry, such as talent agencies, agents, and casting directors.
1. A recruitment or information source which asserts the availability of qualified U.S. workers must provide specific information on the U.S. workers, including their names, addresses, and telephone numbers so that the employer may contact them.
J. If the certifying officer finds that the employer has adequately recruited U.S. workers in the previous six weeks before filing the application, the prescribed recruitment through the OSE may be waived. The employer may make a written request for a waiver of recruitment through the OSE. The OSE will send the request along with the application to the certifying officer for evaluation.
K. The employer must provide the OSE a copy of the advertisement showing the name of the publication and the dates published and written results of all recruitment which must:
1. Identify each recruitment source by name;
2. State the name, address, and telephone number of each U.S. worker who applied for the job; and
3. Explain the lawful job-related reasons for not hiring each U.S. worker.
L. When recruitment through all sources is completed, the OSE shall send the application, together with all pertinent information, to the appropriate regional certifying officer in New York, Dallas, or San Francisco.
A. The certifying office shall consider circumstances unique to the entertainment industry and determine whether to grant or to deny the temporary labor certification, or to issue a notice that the required determination cannot be made based on whether or not:
1. U.S. workers are available for the temporary employment opportunity:
a. The certifying officer, in judging if a U.S. worker is available for the temporary employment opportunity, shall determine from documented results of the employer and local office recruitment efforts if there are other appropriate sources of workers, where the employer should have recruited or may recruit U.S. workers. If further recruitment is required, the application should be returned to the OSE with specific instructions for the additional recruitment.
b. To determine if a U.S. worker is available, the certifying officer shall consider U.S. workers living or working in the area of intended employment, and may also consider U.S. workers who are willing to move from elsewhere to take the job at their own expense or at the employer's expense f the prevailing practice among employers who employ workers in the occupation is to pay such relocation expenses.
c. To determine if U.S. workers are available for job opportunities that will be performed in more than one location, workers must be available in each location on dates specified by the employer.
2. The employment of the alien will adversely affect wages and working conditions of U.S. workers similarly employed. To determine this, the certifying officer 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, an prevailing working conditions, such as hours in the occupation.
3. The job opportunity contains requirements or condition of U.S. workers or which otherwise prevent their effective recruitment e.g., there is no employer in the U.S. Such applications shall be denied on the basis that U.S. workers are generally available for employment in the entertainment industry and it was not shown that the employer made reasonable efforts to obtain U.S. workers for the job. Under these circumstances, the Department must assume that U.S. workers are available.
B. Dates on the temporary labor certificating shall be the beginning and ending dates of the actual employment not to exceed 12 months, and the date certification was granted. The beginning date of certified employment may not be earlier than the date certification was granted.
C. A denial of certification or a notice that certification cannot be made shall not be reviewed by the Department of Labor, but may be appealed to the Immigration and Naturalization Service (INS). The petitioner may attach the decision to the nonimmigrant visa petition and present countervailing evidence that qualified persons in the United States are not available and that the employment policies of the Department of Labor were observed. The INS will consider all such evidence in adjudicating the petit
Unions With Substantial Membership in the Arts, Entertainment and Media Industry
Actors Equity Association
Alan Eisenberg, Executive Secretary, 165
West 46th Street, New York, New York 110036,
PH: (212) 869-8530
Approx. Membership: 30,000
Performers (other than musicians), stagemanagers, assistant stagemanagers employed in the "live" dramatic and musical theater.
American Federation of Musicians
Victor Fuentealba, President, 1500
Broadway, New York, New York 10036,
PH: (212) 869-1330
Approx. Membership: 299,133
Musicians, conductors, music librarians, arrangers, copyists, singers (night club and cabarets).
American Federation of Television and Radio Artists
Sanford I. Wolff, Executive Secretary, 1350
Avenue of the Americas, New York, New York 10019,
PH: (212) 265-700
Approx. Membership: 51,000
Performers other than musicians who are employed by the broadcasting, cable and/or recorded media including disc and videoaudio tapes.
American Guild of Musical Artists
Gene Boucher, Executive Secretary, 1841
Broadway, New York, New York 10023,
PH: (212) 265-3687
Approx.. Membership: 5,000
All performers (except musicians), stage managers and choreographers employed in opera, ballet and dance, also, concert (solo) artists including musicians.
American Guild of Variety Artists
Alan Jan Nelson, Executive President,
Vincent Griesi, Asst. to the President,
Comptroller, 184 Fifth Avenue, New York, New York 10010,
PH: (212) 675-1003
Approx. Membership: 4,865
Performers (except musicians) in ice shows and circuses and performing in hotels and cabarets as part of a variety show.
Association of Theatrical Press Agents and Managers
Dick Weaver, Secretary-Treasurer, 165
West 46th Street, #1200, New York, New York 10036,
PH: (212) 719-3666
Approx. Membership: 600
Theatre and concert hall managers, company managers and press agents.
Director's Guild of America
Michael Franklin, Executive Secretary,
7950 Sunset Blvd., Hollywood, California 90046,
PH: (213) 656-1220 (212) 51=0370 (New York Office)
Approx. Membership: 6,500
In film, directors, production managers, and first and second assistant directors. In tape, directors, associate directors, stage managers, and production assistants.
Hebrew Actors Union
Jack Rechtzeit, President, 31 E 7th Street,
New York, New York 10003, PH: (212) 674-1923
Approx. Membership: 200
Performers (except musicians) who are engaged in the field of Hebrew or Yiddish language theatre.
International Alliance of Theatrical State Employees and Moving Picture Machine Operators of the United States and Canada
Walter F- Diehl, President,
1515 Broadway, New York, New York 10036,
PH: (212) 730-1770
Approx. Membership: 65,000
All craft and technical occupations associated with motion picture production, television broadcasting, sound and video recording cable, legitimate theatre and audio visual materials.
International Brotherhood of Electrical Workers
Jack Kain, Director, Broadcasting & Recording Dept., 1125 15th Street, NW., Washington. D.C. 20005, PH: (202) 833-7000
Approx Membership: 1,041, 408
Technical and craft personnel employed in broadcasting, television, cable operations, sound and video recording, and program production.
Italian Actors Union
Sal Carollo, Executive Secretary, 1540 Broadway, New York, New York 10036, PH: (212) 765-0600
Approx. Membership: 43
Performers (except musicians) who are engaged in the field of Italian language theater.
National Association of Broadcast Employees and Technicians
Edward Lynch, President, 7101 Wisconsin Avenue, N.W., Bethesda, Maryland 20614, PH: (301) 657-8420
Approx. Membership: 9,900
Technical and craft personnel employed in broadcasting, telecasting, recording, filming and allied industries.
Screen Actors Guild
Ken Orsatti, National Executive Secretary, 7750 Sunset Blvd., Hollywood, California 90046, PH: (213) 876-3030
Approx. Membership: 47,123
Performers (other than musicians) employed in the production of motion pictures, television, videotape or video disc.
Screen Extras Guild
Leonard Chassman, National Executive Secretary, 3629 Chauenga Blvd., West, Hollywood, California 90029, PH: (213) 851-4301
Approx. Membership: 4,800
Performers (except musicians) employed in the production of motion pictures, television, videotape or video disc as "extras"(non-speaking).
Society of Stage Directors and Choreographers
A Harrison Cramer, Executive Secretary, 1501 Broadway, New York, New York 10036, PH: (212) 391-1070
Approx. Membership: 950
Directors and Choreographers in the professional theatre.
United Scenic Artists
John VanEyck, Bus. Rep., 1540 Broadway, New York, New York 10036, PH: (212) 575-5120
Approx. Membership: 1,200
Professional scenic designers, scenic artists, costume and lighting designers, diarama and display workers, and mural artists employed by television, theatre, commercial producers, and motion picture studios.
Writers Guild of America, West Naomi Gurian, Exec. Director, 8955 Beveriy Blvd., Los Angeles, California 90048, PH: (213) 550-1000
Approx. Membership: 5,900
Writers in the fields of motion pictures, television, and radio in areas west of the Mississippi.
Writers Guild, East
Leonard Wasser, Exec. Dir., 55 West 5th Street, New York, New York 10019, PH: (212) 245-6180
Approx: Membership: 2,400
Writers in the field of motion picture, television and radio in areas east of the Mississippi.
Dated: April 23, 1984.
Directive: General Administration Le No. 10-84
To: All State Employment Security Agencies
From: Bert Lewis, Administrator for Regional Management
Subject: Procedures for Temporary Labor Certifications in Nonagricultural Occupations
1. Purpose. To transmit procedures processing temporary labor certificate applications in nonagricultural occupations.
2. References. 20 CFR Parts 621, 652 and 655.
3. Background. The attached procedures are designed to clarify processing requirements and to achieve uniform processing for applications under 20 CFR Part 621. They help to fill in the broad outline in those regulations and to direct agency staff to appropriate labor certification and Job Service policies.
4. Action Required. Administrators are requested to:
a. Provide attached procedures to appropriate staff.
b. Instruct staff to follow these procedures in processing temporary labor certification requests in nonagricultural occupations except those in the entertainment industry and professional team sports.
c. Advise staff that attached procedures remain in effect after the expiration of this transmittal memorandum.
5. Inquiries. Direct questions to the appropriate regional office.
a. Procedures for temporary labor certifications in nonagricultural occupations.
b. Final determination form, ETA 7145T
Rescission: GAL 23-82
Expiration date: April 30, 1985.
Procedures for Temporary Labor Certifications in Nonagricultural Occupations
The regulations at 20 CFR Part 621 govern the labor certification process for the temporary employment of nonimmigrant aliens in the United States in occupations other than in agriculture and logging. Occupations on Guam are treated separately under other regulations. The policies in Part 655-Labor Certification Process for the Temporary Employment of Aliens in the United States, and Part 652-Establishment and Functioning of State Employment Services are followed in processing and making determinations o
n temporary nonagricultural applications.
This document replaces all previous instructions and outlines general processing standards for temporary nonagricultural applications, except for professional athletes in team sports and employment in the entertainment industry.
Professional sports applications are processed by the National Office according to policies and procedures which evolved from negotiations with the INS, major and minor leagues, player organizations, and exports in the industry. Procedures for temporary applications in the entertainment industry are included in General Administration Letter No. 5-84.
II. Guidelines for Determining the Temporary or Permanent Nature of a Job Offer
To determine an alien;s eligibility for admission on an H-2 visa, INS requires a Department of Labor certification based on adverse effect as well as availability before they rule on the temporary or permanent nature of the employment.
Because the availability test of U.S. workers in a given occupation can very considerably depending on whether a job is permanent or temporary, the Department of Labor must consider whether in its judgment the job offered to an alien is, in fact, temporary or not. The guidelines below will help staff make this judgment:
A. Tests for determining the temporary or permanent nature of the employment are related to the job and job duties to be performed-not the person who will perform the duties; in other words, whether specific duties which the alien(s) will perform are need for a temporary period or on a continuing basis-regardless of who will perform them.
The work must be above and beyond the employer's normal level of operation and not expected to become a part of the employer's future operations. staff can consider the employer's "peakload" requirements, when temporary additions to permanent staff in an occupation are required due to seasonal or short-term demand, e.g., in resort establishments.
B. Answers to the following questions will help to determine the temporary or permanent nature of the job offered the alien(s):
1. Is the job included in the employer's regular business operations? If yes, are duties to be performed significantly different from the normal or regular operation? Is the equipment similar? Is the work of the same general skill and knowledge level?
2. Is the period for which the alien is requested reasonable in terms of the job to be done?
3. Are the number of aliens requested reasonable in terms of the job to be done and the time requested? Sometimes employers give "ball park" estimates which can be made more precise to avoid situations which would lead to less than full-time employment for U.S. workers and aliens alike.
4. Is this a request for an extension or does the employer often or repeatedly request temporary aliens? If yes, refer to item F.
5. Is there another way that the employer might reasonably be expected to meet his/her needs?
C. Temporary employment should not be confused with part-time employment which does not qualify for temporary labor certification. Part-time employment which does not qualify for temporary labor certification. Part-time concerns work hours, days, and weeks less than those normal for the occupation in the employment area.
D. INS has the ultimate authority to reject the Department of Labor's advice on temporary alien employment. However, if the Department of Labor is convinced that a job is not temporary and INS plans to or does admit the aliens as nonimmigrants, DOL will still not issue a certification.
E. If the Department of Labor learns that an employer for whom a permanent certification was issued, also applies for a temporary certification for the same job (generally because of visa problems), a notice should be issued to the employer that certification cannot be made and an appropriate explanation of the reasons.
F. Some employers request extensions, sometimes several, for jobs represented as temporary. Others repeatedly request approval to bring temporary workers. In such cases, State agencies and regional offices will assure that the employer is not evading its responsibility to obtain an adequate domestic work force: or-as stated earlier-an effort to substitute nonimmigrants when visa quotas cause delays in admitting immigrants. To help staff decide, they should consider the following.
1. Were previous extensions granted, and if so does the period covered exceed reasonable grounds for temporary work?
2. What reason does the employer give for incorrect time estimate(s)?
3. Has the availability picture or the prevailing wage changed?
4. Depending on the skill level and training time for the the occupation and the industry practice on training, is it possible to train available workers?
5. If it is a higher skilled job, what, consistent with industry practice, is being done to upgrade current employees lower skilled workers and fill in behind them from the local work force?
6. What, consistent with industry practice, is being done to cross-train the present work force to handle peak demands?
7. If an apprenticable trade is involved, does the employer have, consistent with industry practice, the accepted ratio of apprentices to journeymen?
G. Repeated applications from the same employer should be subject to very close scrutiny and satisfactory answers to the same type of questioning as listed above. Also, the employer should be asked to document or explain in writing what is being done to overcome reliance on alien workers before a new certification is issued.
H. If a job for which a temporary alien worker is sought is not truly temporary in nature, decline to issue a certification even though U.S. workers are not available and wages being offered are prevailing.
III. Filing Instructions
A. An employer who wants to use foreign workers for temporary employment must file a temporary labor certification application (OMB Approval No. 1205-0015) with a local office of the State job service.
B. Every temporary application should include:
1. ETA 750, Part A, the offer of employment portion of the Application for Alien Employment Certification form signed by the employer. Note: Part B, Statement of Qualifications of Alien is not required.
2. Documentation clearly showing the employer's efforts to recruit U.S. workers.
3. A statement explaining why the job opportunity cannot be performed by a permanent worker on a continuing basis.
C. To allow for enough recruitment of U.S. workers and enough processing time by State and regional offices, the local office shall advise employers to file requests for temporary labor certification at least 45 days before the labor certification is needed in order to receive a timely determination.
D. Unless the Certifying Officer specifies otherwise, the local office should return to employers' requests for temporary labor certification filed more than 120 days before the worker is needed and advise them to refile the application no more than 120 days before the worker is needed. This is necessary since the supply and availability of temporary U.S. workers change over short periods of time and an adequate test of the labor market cannot be made for a longer period.
E. 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.
F. If the employer's agent files the application, the employer must sign the statement on the Application for Alien Employment Certification which authorizes the agent to act on the employer's behalf. The employer is fully responsible for the accuracy of all representations made by the agent on the employer's behalf. An attorney must file a Notice of Appearance (Form G-28) naming the attorney's client(s).
G. 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 3 years, or if unforeseen circumstances require an extension of an approved certification, a new application must be submitted each period beyond 1 year. This allows the Department of Labor to make a current determination of the availability of and adverse effect on U.S. wo
rkers. The period (including extensions) for which a particular job may be certified for temporary alien(s) employment may not exceed 3 consecutive years except for recurring peakload or seasonal employment.
H. When the job opportunity requires the work to be done in more than one area of employment, the application must include the itinerary or locations and duration of work in each location. Such applications will be filed with the local State Job Service office having jurisdiction over the area where the employment will begin.
IV. State Job Service Processing
A. Upon receiving a request for temporary labor certification, the local office shall review the job offer for completeness. A job offer containing a wage below the prevailing wage for such employment in the local area is inappropriate, and would adversely affect the wages of similarly employed U.S. workers. The local office shall determine the prevailing wage, guided by the regulations at 20 CFR 656.40.
B. If qualified U.S. workers are registered with the local office, a job order should be prepared, using the information on the application and placed into the regular ES system for 10 days. During this period, the local office should refer qualified applicants who walk-in and those in its active files.
C. The employer shall advertise the job opportunity, before or after filing the application, in a newspaper of general circulation for 3 consecutive days or in a professional, trade, or ethnic publication, whichever is most appropriate for the occupation and most likely to bring responses from U.S. workers. The advertisement shall:
1. Identify the employer's name, address, and location of the employment (expect ads for aerospace engineers which shall be placed over the name of the local Job Service office) if other than the employer's location:
2. Describe the job opportunity with particularity:
3. State the rate of pay, which shall not be below the prevailing wage for the occupation:
4. Offer prevailing working conditions:
5. State the employer's minimum job requirements:
6. Offer wages, terms and conditions of employment which are not less favorable than those offered to the alien.
D. The employer shall document that unions and other recruitment sources, appropriate for the occupation and customary in the industry, were unable to refer qualified U.S. workers.
E. The employer must provide the local office a copy of the publication and the dates published and written results of all recruitment which must:
1. Identify each recruitment source by name:
2. State the name, address, and telephone number and provide resumes (if submitted to the employer) of each U.S. worker who applied for the job: and
3. Explain the lawful job-related reasons for not hiring each U.S. worker.
F. After the recruitment period, the local office shall send the application, results of recruitment, prevailing wage findings, and other appropriate information to the State office for additional data and comments and transmission to the regional office.
V. Temporary Labor Certification Determinations
A. The certifying officer shall determine whether to grant or to deny the temporary labor certification, or to issue a notice that the required determination cannot be made based on whether or not:
1. U.S. Workers are available for the temporary employment opportunity:
a. The certifying officer, in judging if a U.S. worker is available for the temporary employment opportunity, shall determine from documented results of the employer and local officer recruitment efforts if there are other appropriate sources of workers, where the employer shall have recruited or may recruit U.S. workers. If further recruitment is required, the application should be returned to the State Job Service Office with specific instructions for the additional recruitment.
b. To determine if a U.S. worker is available, the certifying officer shall consider U.S. workers living or working in the area of intended employment, and may also consider U.S. 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.
c. The certifying officer shall consider a U.S. 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 U.S. workers similarly employed and is workers similarly employed and is willing to accept the specific job opportunity.
d. To determine if U.S. workers are available for job opportunities that will be performed in more than one location, workers must be available in each location on dates specified by the employer.
2. The employment of the alien will adversely affect wages and working conditions of U.S. workers similarly employed. To determine this, the certifying officer 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 requirement on conditions which preclude consideration of U.S. workers or which otherwise prevent their effective recruitment, such as:
a. The employment opportunity is represented as temporary and the Department of Labor believes it can and should be offered to U.S. workers on a permanent basis.
b. The job opportunity is vacant because the former occupant is on strike or locked out in the course of a labor dispute involving a work stoppage or the job is at issue in a labor dispute involving a work stoppage.
c. The job opportunity's terms, conditions, and/or occupational environment are contrary to Federal, State or local law.
d. The employer has no location within the United States to which U.S. workers can be referred and hired for employment.
e. The employer will not pay a wage or salary for the job to be performed.
f. The job's requirements are unduly restrictive.
g. The employer refuses to recruit U.S. workers according to DOL policies and procedures.
Such applications shall be denied on the basis that U.S. workers may be available for employment in the occupation and it was not shown that the employer made reasonable efforts to obtain U.S. workers for the job.
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 3 years, except in applications for recurring seasonal employment.
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
VI. Document Transmittal
A. After making a temporary labor certification determination, the certifying officer shall notify the employer, in writing, of the determination.
B. If the labor certification is granted, the certifying officer 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.
C. If the labor certification is denied or a notice is issued that certification cannot be made, the certifying officer shall return one copy of the Application for Alien Employment Certification form, supporting documents, and completed Temporary Determination Form 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 advise the employer of the right to appeal to the INS.
VII. Appeal of a Denial or Notice That a Certification Cannot Be Made
A. The granting or denial of a temporary labor certification by the certifying officer, or a finding that a certification cannot be made, is the final decision of the Secretary of labor. Administrative appeal is made to INS as set forth below.
B. Under the Act and regulations of the Immigration and Naturalization Service, the Department of Labor's role is only 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)(i), that qualified persons in the United States are not available, that wages and working conditions of U.S. workers will not be ad
versely affected, and that the Department of Labor's employment policies were observed.
VIII. Validity of Temporary Labor Certifications
A. 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.
B. A temporary labor certification is limited to one employer's specific job opportunity; it may not be transferred from one employer to another.
IX. Applications Requiring Special Processing
A. Aerospace Engineers
1. Take a job order on all aerospace engineer certification requests.
2. Ensure that the employer advertises in a newspaper or appropriate engineering publication. Advertisements shall describe wages, terms, and conditions of employment, and shall not identify the employer, but shall direct applicants to send resumes to the local Job Service for referral to the employer. Results of ads must be documented. Advertising copy should indicate the same wages, education, working conditions, and location of work as th in the application for alien employment and on the order taken
by the local office.
3. Require employers to offer laid-off engineers reemployment before applying for labor certification.
4. Ensure that all ETA 750, Part A from contract engineering firms identify the user aerospace company and specific where the alien will work.
Certification requests for temporary engineer jobs from contract engineering firms may be accepted without aliens' names. The application, however, must be accompanied by a letter from the user aerospace company. The letter wi authorize a request for unnamed alien, state the number and type of employees required, and specify where the alien will work.
5. Ensure that a copy of the contract for negotiation with alien accompanies all contract engineering firm certification requests.
6. Place into interstate clearance all alien certification job orders for aerospace engineers and related occupations.
Use procedures for placing alien certification job orders in nonagricultural interstate clearance.
7. Process the application according to Parts II, III and IV of these procedures, as appropriate.
B. Construction Workers
a. Unions representing construction workers in the same or substantially equivalent job classification as those for which labor certification is requested shall be contacted to determine availability of U.S. workers when local offices receive requests for 10 or more workers in the same occupation for the same employer at any one time or within a 6-month period.
The Human Resources Development Institute [HRDI] is the employment and training arm of the AFL-CIO; it serves as a centralized liaison between the Department of Labor and individual unions in providing labor market information in skilled trades in order to make an informed labor certification determination.
a. The local office should process the application according to Part II, III and IV of these procedures.
b. The local office shall advise the employer to obtain, from the union local, a letter describing the availability of qualified U.S. workers for the position offered to aliens.
c. Before making a determination, certifying officers should contact, in writing the Executive Director, Human Resources Development, 815 16th Street, NW., Washington, D.C. 20006, and send the following information for each application:
(1) Name and address of company requesting certification;
(2) Location of work site;
(3) Local number and name of the union, if known;
(4) Dates of any prior certifications requested by company;
(5) Total number of aliens requested;
(6) Duration of employment of aliens;
(7) Job classification, special qualifications and wage offered;
(8) Assistance offered to aliens (subsistence, housing, other); and
(9) Reasons for requesting alien labor.
If HRDI knows of available U.S. workers, they will provide this information to the certifying officer along with the name of the appropriate local for the employer to contact. If no response is received within three weeks of the request, a determination will be made on information in the file.
C. Machinists and Aerospace Workers
1. The local office should process the application according to Parts II, III and IV of these procedures.
2. Before making a determination, the certifying officer should send to the Executive Director of the International Association of Machinists and Aerospace Workers, Machinists Building, Room 911, 1200 Connecticut Avenue, NW., Washington, D.C. 20036, the following information for each application:
a. Name and address of company requesting certification;
b. Location of work site;
c. Local number of IAM union, if known;
d. Total number of aliens requested;
e. Duration of employment of alien;
f. Job classification, including information on wages and special qualifications;
g. Assistance offered to aliens [subsistence, housing, other]; and
h. Reason for requesting alien labor.
If the IAM knows of qualified U.S. workers, available for the position, they will give the certifying officer the name of the appropriate local for the employer to contact. If the IAM does not respond within 3 weeks, a determination should be made from the information provided by the local office.
U.S. DEPARTMENT OF LABOR
Employment and Training Administration
No. of Aliens and Occupation_________________________
Period of Certification
The Department of Labor has made a determination on your temporary application for alien employment certification pursuant to Title 20, Code of Federal Regulations, Part 621. Final action has been taken as follows:
1. Form ETA 750 has been certified and is enclosed with the supporting documents. All enclosures should be submitted to the Immigration and Naturalization Service District Office for consideration with your petition [Form I-129B].
2. Form ETA 750 has not been certified and is being returned. A certification cannot be issued as required by Immigration and Naturalization Service regulations at 8 CFR 214.2(h)(3)(i) on the basis of information available for the following reasons [See details below]:
a. There are qualified U.S. workers who are available for the job.
b. The employment of aliens would have an adverse effect on wages and/or working conditions of U.S. workers similarly employed.
c. A certification cannot be made under Department of Labor policies and procedures.
cc: State ES Agency
A denial of certification or a notice that certification cannot be made is not reviewable by the Department of Labor, bur may be appealed to the Immigration and Naturalization Service (INS). The petitioner may attach the decision to the nonimmigrant visa petition and present countervailing evidence that qualified persons in the United States are not available and that the employment policies of the Department of Labor have been observed. The INS will consider all such evidence in adjudicating the petition
TEMPORARY LABOR CERTIFICATION APPLICATIONS
IN THE ENTERTAINMENT INDUSTRY
Regional Offices that
Offices Specializing in Entertainment (OSE)
Bette Roy, Certifying Officer,
Labor Certification Unit, Employment and Training Administration, 1515Broadway,
New York,New York 10038, Tel:(FTS)285-3265, (212)944-3285 (outside).
Joanne Palmairi, Supervisor, Alien Employment Certification Office,
N.Y.State Department of Labor,
2 World Trade Center Rm. 51-75
New York,York 10047,
Tel: (212) 480-2394
Connecticut, Maine, Massachusetts, Rhode Island, Vermont, Alabama, Florida, Georgia,Kentucky, New York, New Kentucky, New York, Newgin Islands, South Carolina, Tennessee, Mississippi, North Carolina, Delaware, District of Columbia,Maryland, Pennsylvania,Virginia, West Virginia.
U.S. Department of Labor, ETA 555 Griffin Square Building,
Griffin and Young Streets, Dallas Texas 75202, Tel:(FTS) 729-4975,
Supervisor, Alien Labor Certification Unit,
Texas Employment Commission, TEC Building,
Austin, Texas 78776,
Tel: (512) 397 4814
Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin, Arkansas, Louisiana, New Mexico, Oklahoma, Texas, Iowa, Kansas, Missouri, Nebraska
Labor Certification Unit, Employment & Training Administration,
450 Golden Gate Avenue, San Francisco, CA 94102 Tel: (FTS) 556-5994,
(415) 556-5994 (outside)
Los Angeles Alien Certification Office, California Employment Development
Dept.158 West 14th Street
Los Angeles, CA 90015
Tel:(213) 744-2105,744 2065
Colorado, Montana, North Dakota South Dakota, Utah, Wyoming, Arizona, California, Guam, Hawaii,Nevada, Alaska, Idaho, Oregon Washington.