[Code of Federal Regulations] [Title 20, Volume 3] [Revised as of April 1, 2007] From the U.S. Government Printing Office via GPO Access [CITE: 20CFR655.104] [Page 484-485] 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 Subpart B_Labor Certification Process for Temporary Agricultural Sec. 655.104 Determinations based on acceptability of H-2A applications. (a) State Workforce Agency activities. The State Workforce Agency (SWA), using the job offer portion of the H-2A application, shall promptly prepare a local job order and shall begin to recruit U.S. workers in the area of intended employment. The OFLC Administrator should notify the SWA by telephone no later than seven calendar days after the application was received by the OFLC Administrator if the application has been accepted for consideration. Upon receiving such notice or seven calendar days after the application is received by the SWA, whichever is earlier, the SWA 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) National Processing Center activities. The OFLC Administrator, 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 Sec. Sec. 655.101- 655.103 of this part. If the OFLC Administrator determines that the application does not meet the requirements of Sec. Sec. 655.101- 655.103, the OFLC Administrator 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 OFLC Administrator 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 OFLC Administrator 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 OFLC Administrator 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 OFLC Administrator with a copy to the SWA. 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 OFLC Administrator 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 OFLC Administrator; the notice shall also state that the employer may submit any legal arguments which the employer believes will rebut the basis of the OFLC Administrator'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. [[Page 485]] (e) Required modifications. If the application is not accepted for consideration by the OFLC Administrator, but the OFLC Administrator'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 OFLC Administrator'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 OFLC Administrator within five calendar days and in a manner specified by the OFLC Administrator which will enable the test of U.S. worker availability to be made as required by Sec. 655.101 of this part within the time available for such purposes. [42 FR 45899, Sept. 13, 1977, as amended at 59 FR 41875, Aug. 15, 1994; 71 FR 35519, June 21, 2006]