[Code of Federal Regulations]
[Title 20, Volume 3]
[Revised as of April 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 20CFR655.104]

[Page 478-480]
 
                      TITLE 20--EMPLOYEES' BENEFITS
 
 CHAPTER V--EMPLOYMENT AND TRAINING ADMINISTRATION, DEPARTMENT OF LABOR
 
PART 655--TEMPORARY EMPLOYMENT OF ALIENS IN THE UNITED STATES--Table of Contents
 
   Subpart B--Labor Certification Process for Temporary Agricultural 
             Employment in the United States (H-2A Workers)
 
Sec. 655.104  Determinations based on acceptability of H-2A applications.

    (a) Local office activities. The local office, using the job offer 
portion of the H-2A application, shall promptly prepare a local job 
order and shall begin to

[[Page 479]]

recruit U.S. workers in the area of intended employment. The RA should 
notify the State or local office by telephone no later than seven 
calendar days after the application was received by the RA if the 
application has been accepted for consideration. Upon receiving such 
notice or seven calendar days after the application is received by the 
local office, whichever is earlier, the local office shall promptly 
prepare an agricultural clearance order which will permit the 
recruitment of U.S. workers by the Employment Service System on an 
intrastate and interstate basis.
    (b) Regional office activities. The RA, upon receipt of the H-2A 
application, shall promptly review the application to determine whether 
it is acceptable for consideration under the timeliness and adverse 
effect criteria of Secs. 655.101-655.103 of this part. If the RA 
determines that the application does not meet the requirements of 
Secs. 655.101-655.103, the RA shall not accept the application for 
consideration on the grounds that the availability of U.S. workers 
cannot be adequately tested because the benefits, wages and working 
conditions do not meet the adverse effect criteria; however, if the RA 
determines that the application is not timely in accordance with 
Sec. 655.101 of this part and that neither the first-year employer 
provisions of Sec. 655.101(c)(5) nor the emergency provisions of 
Sec. 655.101(f) apply, the RA may determine not to accept the 
application for consideration because there is not sufficient time to 
test the availability of U.S. workers.
    (c) Rejected applications. If the application is not accepted for 
consideration, the RA shall notify the applicant in writing (by means 
normally assuring next-day delivery) within seven calendar days of the 
date the application was received by the RA with a copy to the local 
office. The notice shall:
    (1) State all the reasons the application is not accepted for 
consideration, citing the relevant regulatory standards;
    (2) Offer the applicant an opportunity for the resubmission within 
five calendar days of a modified application, stating the modifications 
needed in order for the RA to accept the application for consideration;
    (3) Offer the applicant an opportunity to request an expedited 
administrative review of or a de novo administrative hearing before an 
administrative law judge of the nonacceptance; the notice shall state 
that in order to obtain such a review or hearing, the employer, within 
seven calendar days of the date of the notice, shall file by facsimile 
(fax), telegram, or other means normally assuring next day delivery a 
written request to the Chief Administrative Law Judge of the Department 
of Labor (giving the address) and simultaneously serve a copy on the RA; 
the notice shall also state that the employer may submit any legal 
arguments which the employer believes will rebut the basis of the RA's 
action; and
    (4) State that if the employer does not request an expedited 
administrative-judicial review or a de novo hearing before an 
administrative law judge within the seven calendar days no further 
consideration of the employer's application for temporary alien 
agricultural labor certification will be made by any DOL official.
    (d) Appeal procedures. If the employer timely requests an expedited 
administrative review or de novo hearing before an administrative law 
judge pursuant to paragraph (c)(3) of this section, the procedures at 
Sec. 655.112 of this part shall be followed.
    (e) Required modifications. If the application is not accepted for 
consideration by the RA, but the RA's written notification to the 
applicant is not timely as required by Sec. 655.101 of this part, the 
certification determination will not be extended beyond 20 calendar days 
before the date of need. The notice will specify that the RA's temporary 
alien agricultural labor certification determination will be made no 
later than 20 calendar days before the date of need, provided that the 
applicant submits the modifications to the application which are 
required by the RA within five calendar days and in a manner specified 
by the RA which will enable the test of U.S. worker availability to be 
made as required by Sec. 655.101 of this

[[Page 480]]

part within the time available for such purposes.

[42 FR 45899, Sept. 13, 1977, as amended at 59 FR 41875, Aug. 15, 1994]