[Code of Federal Regulations]
[Title 20, Volume 3]
[Revised as of April 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 20CFR656.24]

[Page 701-702]
 
                      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 C_Labor Certification Process
 
Sec. 656.24  Labor certification determinations.

    (a)(1) The Chief, Division of Foreign Labor Certification is the 
National Certifying Officer. The Chief and the certifying officers in 
the ETA application processing centers have the authority to certify or 
deny labor certification applications.
    (2) If the labor certification presents a special or unique problem, 
the Director of an ETA application processing center may refer the 
matter to the Chief, Division of Foreign Labor Certification. If the 
Chief, Division of Foreign Labor Certification, has directed that 
certain types of applications or specific applications be handled in the 
ETA national office, the Directors of the ETA application processing 
centers shall refer such applications to the Chief, Division of Foreign 
Labor Certification.
    (b) The Certifying Officer makes a determination either to grant or 
deny the labor certification on the basis of whether or not:
    (1) The employer has met the requirements of this part.
    (2) There is in the United States a worker who is able, willing, 
qualified, and available for and at the place of the job opportunity.
    (i) The Certifying Officer must consider a U.S. worker able and 
qualified for the job opportunity if the worker, by education, training, 
experience, or a combination thereof, is able to perform in the normally 
accepted manner the duties involved in the occupation as customarily 
performed by other U.S. workers similarly employed. For the purposes of 
this paragraph (b)(2)(i), a U.S. worker is able and qualified for the 
job opportunity if the worker can acquire the skills necessary to 
perform the duties involved in the occupation

[[Page 702]]

during a reasonable period of on-the-job training.
    (ii) If the job involves a job opportunity as a college or 
university teacher, the U.S. worker must be at least as qualified as the 
alien.
    (3) The employment of the alien will not have an adverse effect upon 
the wages and working conditions of U.S. workers similarly employed. In 
making this determination, the Certifying Officer considers such things 
as: labor market information, the special circumstances of the industry, 
organization, and/or occupation, the prevailing wage in the area of 
intended employment, and prevailing working conditions, such as hours, 
in the occupation.
    (c) The Certifying Officer shall notify the employer in writing 
(either electronically or by mail) of the labor certification 
determination.
    (d) If a labor certification is granted, except for a labor 
certification for an occupation on Schedule A (Sec. 656.5) or for 
employment as a sheepherder under Sec. 656.16, the Certifying Officer 
must send the certified application and complete Final Determination 
form to the employer, or, if appropriate, to the employer's agent or 
attorney, indicating the employer may file all the documents with the 
appropriate DHS office.
    (e) If the labor certification is denied, the Final Determination 
form will:
    (1) State the reasons for the determination;
    (2) Quote the request for review procedures at Sec. 656.26 (a) and 
(b);
    (3) Advise that failure to request review within 30 days of the date 
of the determination, as specified in Sec. 656.26(a), constitutes a 
failure to exhaust administrative remedies;
    (4) Advise that, if a request for review is not made within 30 days 
of the date of the determination, the denial shall become the final 
determination of the Secretary;
    (5) Advise that if an application for a labor certification is 
denied, and a request for review is not made in accordance with the 
procedures at Sec. 656.26(a) and (b), a new application may be filed at 
any time; and
    (6) Advise that a new application in the same occupation for the 
same alien can not be filed while a request for review is pending with 
the Board of Alien Labor Certification Appeals.
    (f) If the Certifying Officer determines the employer substantially 
failed to produce required documentation, or the documentation was 
inadequate, or determines a material misrepresentation was made with 
respect to the application, or if the Certifying Officer determines it 
is appropriate for other reasons, the employer may be required to 
conduct supervised recruitment pursuant to Sec. 656.21 in future 
filings of labor certification applications for up to two years from the 
date of the Final Determination.
    (g)(1) The employer may request reconsideration within 30 days from 
the date of issuance of the denial.
    (2) The request for reconsideration may not include evidence not 
previously submitted.
    (3) The Certifying Officer may, in his or her discretion, reconsider 
the determination or treat it as a request for review under Sec. 
656.26(a).