[Code of Federal Regulations]
[Title 20, Volume 3]
[Revised as of April 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 20CFR655.204]

[Page 495-496]
 
                      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. 655.204  Determinations based on temporary labor certification 
applications.

    (a) Within two working days after the temporary labor certification 
application has been filed with it, the local office shall mail the 
duplicate application directly to the appropriate RA.

[[Page 496]]

    (b) The local office, using the job offer portion of its copy of the 
temporary labor certification application, shall promptly prepare a 
local job order and shall begin to recruit U.S. workers in the area of 
intended employment.
    (c) The RA, upon receipt of the duplicate temporary labor 
certification application, shall promptly review the application to 
determine whether it meets the requirements of Sec. Sec. 655.201-
655.203 in order to determine whether the employer's application is (1) 
timely, and (2) contains offers of wages, benefits, and working 
conditions required to ensure that similarly employed U.S. workers will 
not be adversely affected. If the RA determines that the temporary labor 
certification application is not timely in accordance with Sec. 655.201 
of this subpart, the RA may promptly deny the temporary labor 
certification on the grounds that, in accordance with that regulation, 
there is not sufficient time to adequately test the availability of U.S. 
workers. If the RA determines that the application does not meet the 
requirements of Sec. Sec. 655.202-655.203 because the wages, working 
conditions, benefits, assurances, job offer, etc. are not as required, 
the RA shall deny the certification on the grounds that the availability 
of U.S. workers cannot be adequately tested because the wages or 
benefits, etc. do not meet the adverse effect criteria.
    (d) If the certification is denied, the RA shall notify the employer 
in writing of the determination, with a copy to the local office and the 
Administrator. The notice shall:
    (1) State the reasons for the denial, citing the relevant 
regulations; and
    (2) Offer the employer an opportunity to request an expedited 
administrative-judicial review of the denial by a Department of Labor 
(DOL) Hearing Officer. The notice shall state that in order to obtain 
such a review, the employer must, within five calendar days of the date 
of the notice, file by facsimile (fax), telegram, or other means 
normally assuring next day delivery a written request for such a review 
to the Chief Administrative Law Judge of the Department of Labor (giving 
the address) and simultaneously serve a copy on the Regional 
Administrator. The notice shall also state that the employer's request 
for review should contain any legal arguments which the employer 
believes will rebut the basis of the RA's denial of certification; and
    (3) State that, if the employer does not request an expedited 
administrative-judicial review before a DOL Hearing Officer within the 
five days:
    (i) The RA will advise the INS that the certification cannot be 
granted, giving the reasons therefor, and that an administrative-
judicial review of the denial was offered to the employer but not 
accepted, and enclosing, for INS review, the entire temporary labor 
certification application file; and
    (ii) The employer has the opportunity to submit evidence to the INS 
to rebut the bases of the RA's determination in accordance with the INS 
regulation at 8 CFR 214.2(h)(3)(i) but that no further review of the 
employer's application for temporary labor certification may be made by 
any Department of Labor official.
    (e) If the employer timely requests an expedited administrative-
judicial review pursuant to paragraph (d)(2) of this section, the 
procedures of Sec. 655.212 shall be followed.

[43 FR 10313, Mar. 10, 1978, as amended at 59 FR 41876, Aug. 15, 1994]