[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: 20CFR656.2]

[Page 666-667]
 
                      TITLE 20--EMPLOYEES' BENEFITS
 
 CHAPTER V--EMPLOYMENT AND TRAINING ADMINISTRATION, DEPARTMENT OF LABOR
 
PART 656--LABOR CERTIFICATION PROCESS FOR PERMANENT EMPLOYMENT OF ALIENS IN THE UNITED STATES--Table of Contents
 
                Subpart A--Purpose and Scope of Part 656
 
Sec. 656.2  Description of the Immigration and Nationality Act and of the Department of Labor's role thereunder.

    (a)(1) Description of the Act. The Immigration and Nationality Act 
(Act) (8 U.S.C. 1101 et seq.) regulates the admission of aliens into the 
United States. The Act designates the Attorney General and the Secretary 
of State as the principal administrators of its provisions.
    (2) The Immigration and Naturalization Service (INS) performs most 
of the Attorney General's functions under the Act. See 8 CFR 2.1.
    (3) The consular offices of the Department of State throughout the 
world are generally the initial contact for aliens in foreign countries 
who wish to come to the United States. These offices determine the type 
of visa for which an alien may be eligible, obtain visa eligibility 
documentation, and issue visas.
    (b) Burden of Proof under the Act. Section 291 of the Act (8 U.S.C. 
1361) states in pertinent part, that:

    Whenever any person makes application for a visa or any other 
documentation required for entry, or makes application for admission, or 
otherwise attempts to enter the United States, the burden of proof shall 
be upon such person to establish that he is eligible to receive such 
visa or such document, or is not subject to exclusion under any 
provision of this Act * * *.

    (c)(1) Role of the Department of Labor. The role of the Department 
of Labor under the Act derives from section 212(a)(5)(A) (8 U.S.C. 
1182(a)(5)(A)), which provides that any alien who seeks admission or 
status as an immigrant for the purpose of employment under paragraph (2) 
or (3) of section 203(b) of the Act shall be excluded unless the 
Secretary of Labor has first certified to the Secretary of State and to 
the Attorney General that:
    (i) There are not sufficient United States workers, who are able, 
willing, qualified, and available at the time of application for a visa 
and admission to the United States and at the place where the alien is 
to perform such skilled or unskilled labor, and
    (ii) The employment of such alien will not adversely affect the 
wages and working conditions of workers in the United States similarly 
employed.
    (2) The certification is referred to in this part 656 as a ``labor 
certification''.
    (3) The Department of Labor issues labor certifications in two 
instances: For the permanent employment of aliens; and for temporary 
employment of aliens in the United States classified under 8 U.S.C. 
1101(a)(15)(H)(ii) pursuant to regulations of the Immigration and 
Naturalization Service at 8 CFR 214.2(h)(4) and sections 
101(a)(15)(H)(ii), 214, and 218 of the Act. See 8 U.S.C. 
1101(a)(15)(H)(ii), 1184, and 1188. The Department also administers 
attestation and labor condition application programs relating to the 
admission and/or work authorization of the following nonimmigrants: 
registered nurses (H-1A visas), professionals (H-1B visas), crewmembers 
performing longshore work (D visas), and students (F-1

[[Page 667]]

visas), classified under 8 U.S.C. 1101(a)(15)(H)(i)(a), 
1101(a)(15)(H)(i)(b), 1101(a)(15)(D), and 1101(a)(15)(F), respectively. 
See also 8 U.S.C. 1184 (c), (m), and (n), and 1288; and Public Law 101-
649 section 221, 8 U.S.C. 1184 note. The regulations under this part 656 
apply only to labor certifications for permanent employment.

[56 CFR 54927, Oct. 23, 1991]