[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: 20CFR655.201]

[Page 498-499]
 
                      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 C_Labor Certification Process for Logging Employment and Non-H	
                       2A Agricultural Employment
 
Sec.  655.201  Temporary labor certification applications.

    (a) (1) An employer who anticipates a labor shortage of workers for 
agricultural or logging employment may request a temporary labor 
certification for temporary foreign workers by filing, or by having an 
agent file, in duplicate, a temporary labor certification application, 
signed by the employer, with a SWA in the area of intended employment.
    (2) If the temporary labor certification application is filed by an 
agent, however, the agent may sign the application if the application is 
accompanied by a letter from each employer the agent represents, signed 
by the employer, which authorizes the agent to act on the employer's 
behalf and which states that the employer assumes full responsibility 
for the accuracy of the application, for all representations made by the 
agent on the employer's behalf, and for the fulfillment of all legal 
requirements arising under this subpart.
    (3) If an association of employers files the application, the 
association shall identify and submit documents to verify whether, in 
accordance with the definitions at Sec.  655.200, it is: (i) The 
employer, (ii) a joint employer with its member employers, or (iii) the 
agent of its employer members.
    (b) Every temporary labor certification application shall include:
    (1) A copy of the job offer which will be used by the employer (or 
each employer) for the recruitment of both U.S. and foreign workers. The 
job offer for each employer shall state the number of workers needed by 
the employer, and shall be signed by the employer. The job offer shall 
comply with the requirements of Sec. Sec.  655.202 and 653.108 of this 
chapter;
    (2) The assurances required by Sec.  655.203; and
    (3) The specific estimated date of need of workers.
    (c) The entire temporary labor certification application shall be 
filed with the SWA in duplicate and in sufficient time to allow the 
State agency to attempt to recruit U.S. workers locally and through the 
Employment Service intrastate and interstate clearance system for 60 
calendar days prior to the

[[Page 499]]

estimated date of need. Section 655.206 requires the OFLC Administrator 
to grant or deny the temporary labor certification application by the 
end of the 60 calendar days, or 20 days from the estimated date of need, 
whichever is later. That section also requires the OFLC Administrator to 
offer employers an expedited administrative-judicial review in cases of 
denials of the temporary labor certification applications. Following an 
administrative-judicial review, the employer has a right to contest any 
denial before the DHS pursuant to 8 CFR 214.2(h)(3)(i). Finally, 
employers need time, after the temporary labor certification 
determination, to complete the process for bringing foreign workers into 
the United States, or to bring an appeal of a denial of an application 
for the labor certification. Therefore, employers should file their 
temporary labor certification applications at least 80 days before the 
estimated date of need specified in the application.
    (d) Applications may be amended at any time prior to OFLC 
Administrator determination to increase the number of workers requested 
in the original application for labor certification by not more than 15 
percent without requiring an additional recruitment period for U.S. 
workers. Requests for increases beyond 15 percent may be approved only 
when it is determined that, based on past experience, the need for 
additional workers could not be foreseen and that a critical need for 
the workers would exist prior to the expiration of an additional 
recruitment period.
    (e) If a temporary labor certification application, or any part 
thereof, does not satisfy the time requirements specified in paragraph 
(c) of this section, and if the exception in paragraph (d) of this 
section does not apply, the SWA shall immediately send both copies 
directly to the appropriate OFLC Administrator. The OFLC Administrator 
may then advise the employer and the DHS in writing that the temporary 
labor certification cannot be granted because, pursuant to the 
regulations at paragraph (c) of this section, there is not sufficient 
time to test the availability of U.S. workers. The notice of denial to 
the employer shall inform the employer of the right to administrative-
judicial review and to ultimately petition DHS for the admission of the 
aliens. In emergency situations, however, the OFLC Administrator may 
waive the time period specified in this section on behalf of employers 
who have not made use of temporary alien workers for the prior year's 
harvest or for other good and substantial cause, provided the OFLC 
Administrator has sufficient labor market information to make the labor 
certification determinations required by 8 CFR 214.2(h)(3)(i).

(Approved by the Office of Management and Budget under control number 
1205-0015)

[43 FR 10313, Mar. 10, 1978, as amended at 49 FR 18295, Apr. 30, 1984; 
71 FR 35521, June 21, 2006]