[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: 20CFR655.206]

[Page 499-500]
 
                      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 C--Labor Certification Process for Logging Employment and Non-H-
                       2A Agricultural Employment
 
Sec. 655.206  Determinations of U.S. worker availability and adverse effect on U.S. workers.

    (a) If the RA, in accordance with Sec. 655.205 has determined that 
the employer has complied with the recruitment assurances, the RA, by 
60th day of the recruitment period, or 20 days before the date of need 
specified in the application, whichever is later, shall grant the 
temporary labor certification for enough aliens to fill the employer's 
job opportunities for which U.S. workers are not available. In making 
this determination the RA shall consider as available for a job 
opportunity any U.S. worker who has made a firm commitment to work for 
the employer, including those workers committed by other authorized 
persons such as farm labor contractors and family heads; such a firm 
commitment shall be considered to have been made not only by workers who 
have signed work contracts with the employer, but also by those whom the 
RA determines are very likely to sign such a work contract. The RA shall 
also count as available any U.S. worker who has applied to the employer 
(or on whose behalf an application has been made), but who was rejected 
by the employer for other than lawful job-related related reasons unless 
the RA determines that:
    (1) Enough qualified U.S. workers have been found to fill all the 
employer's job opportunities; or
    (2) The employer, since the time of the initial determination under 
Sec. 655.204, has adversely affected U.S. workers by offering to, or 
agreeing to provide to, alien workers better wages, working conditions, 
or benefits (or by offering or agreeing to impose on alien workers less 
obligations and restrictions) than that offered to U.S. workers.
    (b) (1) Temporary labor certifications shall be considered subject 
to the conditions and assurances made during the application process. 
Temporary labor certifications shall be for a limited duration such as 
for ``the 1978 apple harvest season'' or ``until November 1, 1978'', and 
they shall never be for more than eleven months. They shall be limited 
to the employer's specific job opportunities; therefore, they may not be 
transferred from one employer to another.
    (2) If an association of employers is itself the employer, as 
defined in Sec. 655.200, certifications shall be made to the association 
and may be used for any of the job opportunities of its employer members 
and workers may be transferred among employer members.
    (3) If an association of employers is a joint employer with its 
employer members, as defined in Sec. 655.200, the certification shall be 
made jointly to the association and the employer members. In such cases 
workers may be transferred among the employer members provided the 
employer members and the association agree in writing to be jointly and 
severally liable for compliance with the temporary labor certification 
obligations set forth in this subpart.
    (c) If the RA denies the temporary labor certification in whole or 
part, the RA shall notify the employer in writing by means normally 
assuring next-day delivery. The notice shall contain all of the 
statements required in Sec. 655.204(d). If a timely request is made for 
an administrative-judicial review by a DOL Hearing Officer, the 
procedures of Sec. 655.212 shall be followed.
    (d) (1) After a temporary labor certification has been granted, the 
employer shall continue its efforts to actively recruit U.S. workers 
until the foreign workers have departed for the employer's place of 
employment. The employer, however, must keep an active job order on file 
until the assurance at Sec. 655.203(e) is met.

[[Page 500]]

    (2) The ES system shall continue to actively recruit and refer U.S. 
workers as long as there is an active job order on file.

[43 FR 10313, Mar. 10, 1978, as amended at 59 FR 41876, Aug. 15, 1995]