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e-CFR data is current as of August 6, 2020

Title 20Chapter VPart 655Subpart B → Subject Group


Title 20: Employees' Benefits
PART 655—TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES
Subpart B—Labor Certification Process for Temporary Agricultural Employment in the United States (H-2A Workers)


Processing of Applications for Temporary Employment Certification

§655.140   Review of applications.

(a) NPC review. The CO will promptly review the Application for Temporary Employment Certification and job order for compliance with all applicable program requirements, including compliance with the requirements set forth in this subpart.

(b) Mailing and postmark requirements. Any notice or request sent by the CO(s) to an employer requiring a response will be sent using the provided address via traditional methods to assure next day delivery. The employer's response to such a notice or request must be filed using traditional methods to assure next day delivery and be sent by the date due or the next business day if the due date falls on a Sunday or Federal Holiday.

§655.141   Notice of deficiency.

(a) Notification timeline. If the CO determines the Application for Temporary Employment Certification or job order are incomplete, contain errors or inaccuracies, or do not meet the requirements set forth in this subpart, the CO will notify the employer within 7 calendar days of the CO's receipt of the Application for Temporary Employment Certification. A copy of this notification will be sent to the SWA serving the area of intended employment.

(b) Notice content. The notice will:

(1) State the reason(s) why the Application for Temporary Employment Certification or job order fails to meet the criteria for acceptance;

(2) Offer the employer an opportunity to submit a modified Application for Temporary Employment Certification or job order within 5 business days from date of receipt stating the modification that is needed for the CO to issue the Notice of Acceptance;

(3) Except as provided for under the expedited review or de novo administrative hearing provisions of this section, state that the CO's determination on whether to grant or deny the Application for Temporary Employment Certification will be made no later than 30 calendar days before the date of need, provided that the employer submits the requested modification to the Application for Temporary Employment Certification within 5 business days and in a manner specified by the CO;

(4) Offer the employer an opportunity to request an expedited administrative review or a de novo administrative hearing before an ALJ of the Notice of Deficiency. The notice will state that in order to obtain such a review or hearing, the employer, within 5 business days of the receipt of the notice, must file by facsimile or other means normally assuring next day delivery a written request to the Chief ALJ of DOL and simultaneously serve a copy on the CO. The notice will also state that the employer may submit any legal arguments that the employer believes will rebut the basis of the CO's action; and

(5) State that if the employer does not comply with the requirements of §655.142 or request an expedited administrative review or a de novo hearing before an ALJ within 5 business days the CO will deny the Application for Temporary Employment Certification. That denial is final cannot be appealed and the Department will not further consider that Application for Temporary Employment Certification.

(c) Appeal from Notice of Deficiency. The employer may timely request an expedited administrative review or de novo hearing before an ALJ by following the procedures set forth in §655.171.

§655.142   Submission of modified applications.

(a) Submission requirements and certification delays. If the employer chooses to submit a modified Application for Temporary Employment Certification, the CO's Final Determination will be postponed by 1 calendar day for each day that passes beyond the 5 business-day period allowed under §655.141(b) to submit a modified Application for Temporary Employment Certification, up to maximum of 5 days. The Application for Temporary Employment Certification will be deemed abandoned if the employer does not submit a modified Application for Temporary Employment Certification within 12 calendar days after the notice of deficiency was issued.

(b) Provisions for denial of modified Application for Temporary Employment Certification. If the modified Application for Temporary Employment Certification is not approved, the CO will deny the Application for Temporary Employment Certification in accordance with the labor certification determination provisions in §655.164.

(c) Appeal from denial of modified Application for Temporary Employment Certification. The procedures for appealing a denial of a modified Application for Temporary Employment Certification are the same as for a non-modified Application for Temporary Employment Certification as long as the employer timely requests an expedited administrative review or de novo hearing before an ALJ by following the procedures set forth in §655.171.

§655.143   Notice of acceptance.

(a) Notification timeline. When the CO determines the Application for Temporary Employment Certification and job order are complete and meet the requirements set forth in this subpart, the CO will notify the employer within 7 calendar days of the CO's receipt of the Application for Temporary Employment Certification. A copy will be sent to the SWA serving the area of intended employment.

(b) Notice content. The notice must:

(1) Authorize conditional access to the interstate clearance system and direct the SWA to circulate a copy of the job order to other such States the CO determines to be potential sources of U.S. workers;

(2) Direct the employer to engage in positive recruitment of U.S. workers in a manner consistent with §655.154 and to submit a report of its positive recruitment efforts as specified in §655.156;

(3) State that positive recruitment is in addition to and will occur during the period of time that the job order is being circulated by the SWA(s) for interstate clearance under §655.150 of this subpart and will terminate on the actual date on which the H-2A workers depart for the place of work, or 3 calendar days prior to the first date the employer requires the services of the H-2A workers, whichever occurs first;

(4) State that the CO will make a determination either to grant or deny the Application for Temporary Employment Certification no later than 30 calendar days before the date of need, except as provided for under §655.144 for modified Applications for Temporary Employment Certification.; and

(5) Where appropriate to the job opportunity and area of intended employment, direct the SWA to provide written notice of the job opportunity to organizations that provide employment and training services to workers likely to apply for the job and/or to place written notice of the job opportunity in other physical locations where such workers are likely to gather.

[75 FR 6959, Feb. 12, 2010, as amended at 84 FR 49456, Sept. 20, 2019]

§655.144   Electronic job registry.

(a) Location of and placement in the electronic job registry. Upon acceptance of the Application for Temporary Employment Certification under §655.143, the CO will promptly place for public examination a copy of the job order on an electronic job registry maintained by the Department, including any required modifications approved by the CO, as specified in §655.142. This procedure will be implemented once the Department initiates operation of the registry.

(b) Length of posting on electronic job registry. Unless otherwise provided, the Department will keep the job order posted on the Electronic Job Registry until the end of 50 percent of the contract period as set forth in §655.135(d).

§655.145   Amendments to applications for temporary employment certification.

(a) Increases in number of workers. The Application for Temporary Employment Certification may be amended at any time before the CO's certification determination to increase the number of workers requested in the initial Application for Temporary Employment Certification by not more than 20 percent (50 percent for employers requesting less than 10 workers) without requiring an additional recruitment period for U.S. workers. Requests for increases above the percent prescribed, without additional recruitment, may be approved by the CO only when the employer demonstrates that the need for additional workers could not have been foreseen, and the crops or commodities will be in jeopardy prior to the expiration of an additional recruitment period. All requests for increasing the number of workers must be made in writing.

(b) Minor changes to the period of employment. The Application for Temporary Employment Certification may be amended to make minor changes in the total period of employment. Changes will not be effective until submitted in writing and approved by the CO. In considering whether to approve the request, the CO will review the reason(s) for the request, determine whether the reason(s) are on the whole justified, and take into account the effect any change(s) would have on the adequacy of the underlying test of the domestic labor market for the job opportunity. An employer must demonstrate that the change to the period of employment could not have been foreseen, and the crops or commodities will be in jeopardy prior to the expiration of an additional recruitment period. If the request is for a delay in the start date and is made after workers have departed for the employer's place of work, the CO may only approve the change if the employer includes with the request a written assurance signed and dated by the employer that all workers who are already traveling to the job site will be provided housing and subsistence, without cost to the workers, until work commences. Upon acceptance of an amendment, the CO will submit to the SWA any necessary modification to the job order.

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