PART 656—LABOR CERTIFICATION PROCESS FOR PERMANENT EMPLOYMENT OF ALIENS IN THE UNITED STATES Authority: 8 U.S.C. 1182(a)(5)(A), 1182(p)(1); sec.122, Public Law 101-649, 109 Stat. 4978; and Title IV, Public Law 105-277, 112 Stat. 2681. Source: 69 FR 77386, Dec. 27, 2004, unless otherwise noted. Subpart A—Purpose and Scope of Part 656 § 656.1 Purpose and scope of part 656. (a) Under section 212(a)(5)(A) of the Immigration and Nationality Act (INA or Act) (8 U.S.C. 1182(a)(5)(A)), certain aliens may not obtain immigrant visas for entrance into the United States in order to engage in permanent employment unless the Secretary of Labor has first certified to the Secretary of State and to the Secretary of Homeland Security that: (1) There are not sufficient United States workers who are able, willing, qualified and available at the time of application for a visa and admission into the United States and at the place where the alien is to perform the work; and (2) The employment of the alien will not adversely affect the wages and working conditions of United States workers similarly employed. (b) The regulations under this part set forth the procedures through which such immigrant labor certifications may be applied for, and granted or denied. (c) Correspondence and questions about the regulations in this part should be addressed to: Office of Foreign Labor Certification, Employment and Training Administration, 200 Constitution Avenue, NW., Room C-4312, Washington, DC 20210. [69 FR 77386, Dec. 27, 2004, as amended at 71 FR 35522, June 21, 2006] § 656.2 Description of the Immigration and Nationality Act and of the Department of Labor's role thereunder. (a) Description of the Act. et seq. (b) Burden of proof under the Act. Whenever any person makes application for a visa or any other documentation required for entry, or makes application for admission, or otherwise attempts to enter the United States, the burden of proof shall be upon such person to establish that he is eligible to receive such visa or such document, or is not subject to exclusion under any provision of this Act * * *. (c)(1) Role of the Department of Labor. (i) There are not sufficient United States workers who are able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor; and (ii) The employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed. (2) This certification is referred to in this part 656 as a “labor certification.” (3) We certify the employment of aliens in several instances: For the permanent employment of aliens under this part; and for temporary employment of aliens for agricultural and nonagricultural employment in the United States classified under 8 U.S.C. 1101(a)(15)(H)(ii), under the DHS regulation at 8 CFR 214.2(h)(5) and (6) and sections 101(a)(15)(H)(ii), 214, and 218 of the Act. See 8 U.S.C. 1101(a)(15)(H)(ii), 1184, and 1188. We also administer labor attestation and labor condition application programs for the admission and/or work authorization of the following nonimmigrants: Specialty occupations and fashion models (H-1B visas), specialty occupations from countries with which the U.S. has entered agreements listed in the INA (H-1B1 visas), registered nurses (H-1C visas), and crewmembers performing longshore work (D visas), classified under 8 U.S.C. 1101(a)(15)(H)(i)(b), 1101(a)(15)(H)(i)(b1), 1101(a)(15)(H)(i)(c), and 1101(a)(15)(D), respectively. See also 8 U.S.C. 1184(c), (m), and (n), and 1288. § 656.3 Definitions, for purposes of this part, of terms used in this part. Act et seq. Agent Applicant Application for Permanent Employment Certification Application Application for Permanent Employment Certification Area of intended employment Attorney Barter, for purposes of an Application for Permanent Employment Certification (Form ETA 9089) or an Application for Alien Labor Certification (Form ETA 750), Board of Alien Labor Certification Appeals Certifying Officer (CO) Closely-held Corporation Employer (1) A person, association, firm, or a corporation that currently has a location within the United States to which U.S. workers may be referred for employment and that proposes to employ a full-time employee at a place within the United States, or the authorized representative of such a person, association, firm, or corporation. An employer must possess a valid Federal Employer Identification Number (FEIN). For purposes of this definition, an “authorized representative” means an employee of the employer whose position or legal status authorizes the employee to act for the employer in labor certification matters. A labor certification can not be granted for an Application for Permanent Employment Certification (2) Persons who are temporarily in the United States, including but not limited to, foreign diplomats, intra-company transferees, students, and exchange visitors, visitors for business or pleasure, and representatives of foreign information media can not be employers for the purpose of obtaining a labor certification for permanent employment. Employment (1) Permanent, full-time work by an employee for an employer other than oneself. For purposes of this definition, an investor is not an employee. In the event of an audit, the employer must be prepared to document the permanent and full-time nature of the position by furnishing position descriptions and payroll records for the job opportunity involved in the Application for Permanent Employment Certification. (2) Job opportunities consisting solely of job duties that will be performed totally outside the United States, its territories, possessions, or commonwealths can not be the subject of an Application for Permanent Employment Certification. Employment and Training Administration (ETA) Immigration Officer Job opportunity Nonprofessional occupation Non-profit or tax-exempt organization (1) Is defined as a tax exempt organization under the Internal Revenue Code of 1986, section 501(c)(3), (c)(4), or (c)(6) (26 U.S.C. 501(c)(3), (c)(4) or (c)(6)); and (2) Has been approved as a tax-exempt organization for research or educational purposes by the Internal Revenue Service. Office of Foreign Labor Certification O*NET http://www.onetcenter.org. Prevailing wage determination (PWD) Professional occupation Application for Permanent Employment Certification form. Purchase, for purposes of an Application for Permanent Employment Certification (Form ETA 9089) or an Application for Alien Labor Certification (Form ETA 750), Sale, for purposes of an Application for Permanent Employment Certification (Form ETA 9089) or an Application for Alien Labor Certification (Form ETA 750), Secretary Secretary of Homeland Security Secretary of State Specific vocational preparation (SVP) Level Time 1 Short demonstration. 2 Anything beyond short demonstration up to and including 30 days. 3 Over 30 days up to and including 3 months. 4 Over 3 months up to and including 6 months. 5 Over 6 months up to and including 1 year. 6 Over 1 year up to and including 2 years. 7 Over 2 years up to and including 4 years. 8 Over 4 years up to and including 10 years. 9 Over 10 years. State Workforce Agency (SWA), United States United States worker (1) A U.S. citizen; (2) A U.S. national; (3) Lawfully admitted for permanent residence; (4) Granted the status of an alien lawfully admitted for temporary residence under 8 U.S.C. 1160(a), 1161(a), or 1255a(a)(1); (5) Admitted as a refugee under 8 U.S.C. 1157; or (6) Granted asylum under 8 U.S.C. 1158. [69 FR 77386, Dec. 27, 2004, as amended at 71 FR 35522, June 21, 2006; 72 FR 27944, May 17, 2007; 73 FR 78068, Dec. 19, 2008] Subpart B—Occupational Labor Certification Determinations § 656.5 Schedule A. We have determined there are not sufficient United States workers who are able, willing, qualified, and available for the occupations listed below on Schedule A Schedule A Schedule A Schedule A (a) Group I: (1) Persons who will be employed as physical therapists, and who possess all the qualifications necessary to take the physical therapist licensing examination in the state in which they propose to practice physical therapy. (2) Aliens who will be employed as professional nurses; and (i) Who have received a Certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS); (ii) Who hold a permanent, full and unrestricted license to practice professional nursing in the state of intended employment; or (iii) Who have passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN), administered by the National Council of State Boards of Nursing. (3) Definitions of Group I occupations: (i) Physical therapist (ii) Professional nurse (b) Group II: (1) Sciences or arts (except performing arts). (2) Performing arts. Subpart C—Labor Certification Process § 656.10 General instructions. (a) Filing of applications. (1) Except as provided in paragraphs (a)(2), (3), and (4) of this section, an employer seeking a labor certification must file under this section and § 656.17. (2) An employer seeking a labor certification for a college or university teacher must apply for a labor certification under this section and must also file under either § 656.17 or § 656.18. (3) An employer seeking labor certification for an occupation listed on Schedule A (4) An employer seeking labor certification for a sheepherder must apply for a labor certification under this section and must also choose to file under either § 656.16 or § 656.17. (b) Representation. Application for Permanent Employment Certification Application for Permanent Employment Certification (2)(i) It is contrary to the best interests of U.S. workers to have the alien and/or agents or attorneys for either the employer or the alien participate in interviewing or considering U.S. workers for the job offered the alien. As the beneficiary of a labor certification application, the alien can not represent the best interests of U.S. workers in the job opportunity. The alien's agent and/or attorney can not represent the alien effectively and at the same time truly be seeking U.S. workers for the job opportunity. Therefore, the alien and/or the alien's agent and/or attorney may not interview or consider U.S. workers for the job offered to the alien, unless the agent and/or attorney is the employer's representative, as described in paragraph (b)(2)(ii) of this section. (ii) The employer's representative who interviews or considers U.S. workers for the job offered to the alien must be the person who normally interviews or considers, on behalf of the employer, applicants for job opportunities such as that offered the alien, but which do not involve labor certifications. (3) No person under suspension or disbarment from practice before any court or before the DHS or the United States Department of Justice's Executive Office for Immigration Review is permitted to act as an agent, representative, or attorney for an employer and/or alien under this part. (c) Attestations. Application for Permanent Employment Certification (1) The offered wage equals or exceeds the prevailing wage determined pursuant to § 656.40 and § 656.41, and the wage the employer will pay to the alien to begin work will equal or exceed the prevailing wage that is applicable at the time the alien begins work or from the time the alien is admitted to take up the certified employment; (2) The wage offered is not based on commissions, bonuses or other incentives, unless the employer guarantees a prevailing wage paid on a weekly, bi-weekly, or monthly basis that equals or exceeds the prevailing wage; (3) The employer has enough funds available to pay the wage or salary offered the alien; (4) The employer will be able to place the alien on the payroll on or before the date of the alien's proposed entrance into the United States; (5) The job opportunity does not involve unlawful discrimination by race, creed, color, national origin, age, sex, religion, handicap, or citizenship; (6) The employer's job opportunity is not: (i) Vacant because the former occupant is on strike or locked out in the course of a labor dispute involving a work stoppage; (ii) At issue in a labor dispute involving a work stoppage. (7) The job opportunity's terms, conditions and occupational environment are not contrary to Federal, state or local law; (8) The job opportunity has been and is clearly open to any U.S. worker; (9) The U.S. workers who applied for the job opportunity were rejected for lawful job-related reasons; (10) The job opportunity is for full-time, permanent employment for an employer other than the alien. (d) Notice. Schedule A Application for Permanent Employment Certification (i) To the bargaining representative(s) (if any) of the employer's employees in the occupational classification for which certification of the job opportunity is sought in the employer's location(s) in the area of intended employment. Documentation may consist of a copy of the letter and a copy of the Application for Permanent Employment Certification (ii) If there is no such bargaining representative, by posted notice to the employer's employees at the facility or location of the employment. The notice must be posted for at least 10 consecutive business days. The notice must be clearly visible and unobstructed while posted and must be posted in conspicuous places where the employer's U.S. workers can readily read the posted notice on their way to or from their place of employment. Appropriate locations for posting notices of the job opportunity include locations in the immediate vicinity of the wage and hour notices required by 29 CFR 516.4 or occupational safety and health notices required by 29 CFR 1903.2(a). In addition, the employer must publish the notice in any and all in-house media, whether electronic or printed, in accordance with the normal procedures used for the recruitment of similar positions in the employer's organization. The documentation requirement may be satisfied by providing a copy of the posted notice and stating where it was posted, and by providing copies of all the in-house media, whether electronic or print, that were used to distribute notice of the application in accordance with the procedures used for similar positions within the employer's organization. (2) In the case of a private household, notice is required under this paragraph (d) only if the household employs one or more U.S. workers at the time the application for labor certification is filed. The documentation requirement may be satisfied by providing a copy of the posted notice to the Certifying Officer. (3) The notice of the filing of an Application for Permanent Employment Certification (i) State the notice is being provided as a result of the filing of an application for permanent alien labor certification for the relevant job opportunity; (ii) State any person may provide documentary evidence bearing on the application to the Certifying Officer of the Department of Labor; (iii) Provide the address of the appropriate Certifying Officer; and (iv) Be provided between 30 and 180 days before filing the application. (4) If an application is filed under § 656.17, the notice must contain the information required for advertisements by § 656.17(f), must state the rate of pay (which must equal or exceed the prevailing wage entered by the SWA on the prevailing wage request form), and must contain the information required by paragraph (d)(3) of this section. (5) If an application is filed on behalf of a college and university teacher selected in a competitive selection and recruitment process, as provided by § 656.18, the notice must include the information required for advertisements by § 656.18(b)(3), and must include the information required by paragraph (d)(3) of this section. (6) If an application is filed under the Schedule A (e)(1)(i) Submission of evidence. (ii) Documentary evidence submitted under paragraph (e)(1)(i) of this section may include information on available workers, information on wages and working conditions, and information on the employer's failure to meet the terms and conditions for the employment of alien workers and co-workers. The Certifying Officer must consider this information in making his or her determination. (2)(i) Any person may submit to the appropriate DHS office documentary evidence of fraud or willful misrepresentation in a Schedule A (ii) Documentary evidence submitted under paragraph (e)(2) of this section is limited to information relating to possible fraud or willful misrepresentation. The DHS may consider this information under § 656.31. (f) Retention of documents. Application for Permanent Employment Certification. [69 FR 77386, Dec. 27, 2004, as amended at 71 FR 35523, June 21, 2006] § 656.11 Substitutions and modifications to applications. (a) Substitution or change to the identity of an alien beneficiary on any application for permanent labor certification, whether filed under this part or 20 CFR part 656 in effect prior to March 28, 2005, and on any resulting certification, is prohibited for any request to substitute submitted after July 16, 2007. (b) Requests for modifications to an application will not be accepted for applications submitted after July 16, 2007. [72 FR 27944, May 17, 2007] § 656.12 Improper commerce and payment. The following provision applies to applications filed under both this part and 20 CFR part 656 in effect prior to March 28, 2005, and to any certification resulting from those applications: (a) Applications for permanent labor certification and approved labor certifications are not articles of commerce. They shall not be offered for sale, barter or purchase by individuals or entities. Any evidence that an application for permanent labor certification or an approved labor certification has been sold, bartered, or purchased shall be grounds for investigation under this part and may be grounds for denial under § 656.24, revocation under § 656.32, debarment under § 656.31(f), or any combination thereof. (b) An employer must not seek or receive payment of any kind for any activity related to obtaining permanent labor certification, including payment of the employer's attorneys' fees, whether as an incentive or inducement to filing, or as a reimbursement for costs incurred in preparing or filing a permanent labor certification application, except when work to be performed by the alien in connection with the job opportunity would benefit or accrue to the person or entity making the payment, based on that person's or entity's established business relationship with the employer. An alien may pay his or her own costs in connection with a labor certification, including attorneys' fees for representation of the alien, except that where the same attorney represents both the alien and the employer, such costs shall be borne by the employer. For purposes of this paragraph (b), payment includes, but is not limited to, monetary payments; wage concessions, including deductions from wages, salary, or benefits; kickbacks, bribes, or tributes; in kind payments; and free labor. (c) Evidence that an employer has sought or received payment from any source in connection with an application for permanent labor certification or an approved labor certification, except for a third party to whose benefit work to be performed in connection with the job opportunity would accrue, based on that person's or entity's established business relationship with the employer, shall be grounds for investigation under this part or any appropriate Government agency's procedures, and may be grounds for denial under § 656.32, revocation under § 656.32, debarment under § 656.31(f), or any combination thereof. [72 FR 27945, May 17, 2007] § 656.15 Applications for labor certification for Schedule A (a) Filing application. Schedule A (b) General documentation requirements. Schedule A (1) An Application for Permanent Employment Certification (2) Evidence that notice of filing the Application for Permanent Employment Certification (c) Group I documentation. Schedule A (1) An employer seeking Schedule A (2) An employer seeking a Schedule A (d) Group II documentation. Schedule A Schedule A (1) An employer seeking labor certification on behalf of an alien to be employed as an alien of exceptional ability in the sciences or arts (excluding those in the performing arts) must file documentary evidence showing the widespread acclaim and international recognition accorded the alien by recognized experts in the alien's field; and documentation showing the alien's work in that field during the past year did, and the alien's intended work in the United States will, require exceptional ability. In addition, the employer must file documentation about the alien from at least two of the following seven groups: (i) Documentation of the alien's receipt of internationally recognized prizes or awards for excellence in the field for which certification is sought; (ii) Documentation of the alien's membership in international associations, in the field for which certification is sought, which require outstanding achievement of their members, as judged by recognized international experts in their disciplines or fields; (iii) Published material in professional publications about the alien, about the alien's work in the field for which certification is sought, which shall include the title, date, and author of such published material; (iv) Evidence of the alien's participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which certification is sought; (v) Evidence of the alien's original scientific or scholarly research contributions of major significance in the field for which certification is sought; (vi) Evidence of the alien's authorship of published scientific or scholarly articles in the field for which certification is sought, in international professional journals or professional journals with an international circulation; (vii) Evidence of the display of the alien's work, in the field for which certification is sought, at artistic exhibitions in more than one country. (2) An employer seeking labor certification on behalf of an alien of exceptional ability in the performing arts must file documentary evidence that the alien's work experience during the past twelve months did require, and the alien's intended work in the United States will require, exceptional ability; and must submit documentation to show this exceptional ability, such as: (i) Documentation attesting to the current widespread acclaim and international recognition accorded to the alien, and receipt of internationally recognized prizes or awards for excellence; (ii) Published material by or about the alien, such as critical reviews or articles in major newspapers, periodicals, and/or trade journals (the title, date, and author of such material shall be indicated); (iii) Documentary evidence of earnings commensurate with the claimed level of ability; (iv) Playbills and star billings; (v) Documents attesting to the outstanding reputation of theaters, concert halls, night clubs, and other establishments in which the alien has appeared or is scheduled to appear; and/or (vi) Documents attesting to the outstanding reputation of theaters or repertory companies, ballet troupes, orchestras, or other organizations in which or with which the alien has performed during the past year in a leading or starring capacity. (e) Determination. Schedule A Schedule A Schedule A (f) Refiling after denial. Schedule A [69 FR 77386, Dec. 27, 2004, as amended at 73 FR 78068, Dec. 19, 2008] § 656.16 Labor certification applications for sheepherders. (a) Filing requirements and required documentation. Application for Permanent Employment Certification (2) A signed letter or letters from each U.S. employer who has employed the alien as a sheepherder during the immediately preceding 36 months, attesting the alien has been employed in the United States lawfully and continuously as a sheepherder for at least 33 of the immediately preceding 36 months, must be filed with the application. (b) Determination. (1) The determination of the Immigration Officer under this paragraph (b) is conclusive and final. The employer(s) and the alien, therefore, may not make use of the review procedures set forth at §§ 656.26 and 656.27 to appeal such a determination. (2) If the alien and the employer(s) have met the requirements of this section, the Immigration Officer must indicate on the Application for Permanent Employment Certification Application for Permanent Employment Certification (c) Alternative filing. [69 FR 77386, Dec. 27, 2004, as amended at 71 FR 35523, June 21, 2006] § 656.17 Basic labor certification process. (a) Filing applications. Application for Permanent Employment Certification (2) The Department of Labor may issue or require the use of certain identifying information, including user identifiers, passwords, or personal identification numbers (PINS). The purpose of these personal identifiers is to allow the Department of Labor to associate a given electronic submission with a single, specific individual. Personal identifiers can not be issued to a company or business. Rather, a personal identifier can only be issued to specific individual. Any personal identifiers must be used solely by the individual to whom they are assigned and can not be used or transferred to any other individual. An individual assigned a personal identifier must take all reasonable steps to ensure that his or her personal identifier can not be compromised. If an individual assigned a personal identifier suspects, or becomes aware, that his or her personal identifier has been compromised or is being used by someone else, then the individual must notify the Department of Labor immediately of the incident and cease the electronic transmission of any further submissions under that personal identifier until such time as a new personal identifier is provided. Any electronic transmissions submitted with a personal identifier will be presumed to be a submission by the individual assigned that personal identifier. The Department of Labor's system will notify those making submissions of these requirements at the time of each submission. (3) Documentation supporting the application for labor certification should not be filed with the application, however in the event the Certifying Officer notifies the employer that its application is to be audited, the employer must furnish required supporting documentation prior to a final determination. (b) Processing. (2) Employers will be notified if their applications have been selected for audit by the issuance of an audit letter under § 656.20. (3) Applications may be selected for audit in accordance with selection criteria or may be randomly selected. (c) Filing date. (d) Refiling procedures. (i) Submitting an application for an identical job opportunity after complying with all of the filing and recruiting requirements of this part 656; and (ii) Withdrawing the original application in accordance with ETA procedures. Filing an application under this part stating the employer's desire to use the original filing date will be deemed to be a withdrawal of the original application. The original application will be deemed withdrawn regardless of whether the employer's request to use the original filing date is approved. (2) Refilings under this paragraph must be made within 210 days of the withdrawal of the prior application. (3) A copy of the original application, including amendments, must be sent to the appropriate ETA application processing center when requested by the CO under § 656.20. (4) For purposes of paragraph (d)(1)(i) of this section, a job opportunity shall be considered identical if the employer, alien, job title, job location, job requirements, and job description are the same as those stated in the original application filed under the regulations in effect prior to March 28, 2005. For purposes of determining identical job opportunity, the original application includes all accepted amendments up to the time the application was withdrawn, including amendments in response to an assessment notice from a SWA pursuant to § 656.21(h) of the regulations in effect prior to March 28, 2005. (e) Required pre-filing recruitment. Schedule A (1) Professional occupations. (i) Mandatory steps. (A) Job order. (B) Advertisements in newspaper or professional journals. 1 ( 2 ( 3 ( 4 (ii) Additional recruitment steps. (A) Job fairs. (B) Employer's Web site. (C) Job search Web site other than the employer's. (D) On-campus recruiting. (E) Trade or professional organizations. (F) Private employment firms. (G) Employee referral program with incentives. (H) Campus placement offices. (I) Local and ethnic newspapers. (J) Radio and television advertisements. (2) Nonprofessional occupations. (i) Job order. (ii) Newspaper advertisements. (B) If the job opportunity is located in a rural area of intended employment that does not have a newspaper that publishes a Sunday edition, the employer may use the newspaper edition with the widest circulation in the area of intended employment. (C) Placement of the newspaper advertisements can be documented in the same way as provided in paragraph (e)(1)(i)(B)( 3 (D) The advertisements must satisfy the requirements of paragraph (f) of this section. (f) Advertising requirements. Application for Permanent Employment Certification (1) Name the employer; (2) Direct applicants to report or send resumes, as appropriate for the occupation, to the employer; (3) Provide a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought; (4) Indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity; (5) Not contain a wage rate lower than the prevailing wage rate; (6) Not contain any job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089; and (7) Not contain wages or terms and conditions of employment that are less favorable than those offered to the alien. (g) Recruitment report. (2) 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 during a reasonable period of on-the-job training. Rejecting U.S. workers for lacking skills necessary to perform the duties involved in the occupation, where the U.S. workers are capable of acquiring the skills during a reasonable period of on-the-job training is not a lawful job-related reason for rejection of the U.S. workers. (h) Job duties and requirements. (2) A foreign language requirement can not be included, unless it is justified by business necessity. Demonstrating business necessity for a foreign language requirement may be based upon the following: (i) The nature of the occupation, e.g., translator; or (ii) The need to communicate with a large majority of the employer's customers, contractors, or employees who can not communicate effectively in English, as documented by: (A) The employer furnishing the number and proportion of its clients, contractors, or employees who can not communicate in English, and/or a detailed plan to market products or services in a foreign country; and (B) A detailed explanation of why the duties of the position for which certification is sought requires frequent contact and communication with customers, employees or contractors who can not communicate in English and why it is reasonable to believe the allegedly foreign-language-speaking customers, employees, and contractors can not communicate in English. (3) If the job opportunity involves a combination of occupations, the employer must document that it has normally employed persons for that combination of occupations, and/or workers customarily perform the combination of occupations in the area of intended employment, and/or the combination job opportunity is based on a business necessity. Combination occupations can be documented by position descriptions and relevant payroll records, and/or letters from other employers stating their workers normally perform the combination of occupations in the area of intended employment, and/or documentation that the combination occupation arises from a business necessity. (4)(i) Alternative experience requirements must be substantially equivalent to the primary requirements of the job opportunity for which certification is sought; and (ii) If the alien beneficiary already is employed by the employer, and the alien does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer's alternative requirements, certification will be denied unless the application states that any suitable combination of education, training, or experience is acceptable. (i) Actual minimum requirements. (1) The job requirements, as described, must represent the employer's actual minimum requirements for the job opportunity. (2) The employer must not have hired workers with less training or experience for jobs substantially comparable to that involved in the job opportunity. (3) If the alien beneficiary already is employed by the employer, in considering whether the job requirements represent the employer's actual minimums, DOL will review the training and experience possessed by the alien beneficiary at the time of hiring by the employer, including as a contract employee. The employer can not require domestic worker applicants to possess training and/or experience beyond what the alien possessed at the time of hire unless: (i) The alien gained the experience while working for the employer, including as a contract employee, in a position not substantially comparable to the position for which certification is being sought, or (ii) The employer can demonstrate that it is no longer feasible to train a worker to qualify for the position. (4) In evaluating whether the alien beneficiary satisfies the employer's actual minimum requirements, DOL will not consider any education or training obtained by the alien beneficiary at the employer's expense unless the employer offers similar training to domestic worker applicants. (5) For purposes of this paragraph (i): (i) The term “employer” means an entity with the same Federal Employer Identification Number (FEIN), provided it meets the definition of an employer at § 656.3. (ii) A “substantially comparable” job or position means a job or position requiring performance of the same job duties more than 50 percent of the time. This requirement can be documented by furnishing position descriptions, the percentage of time spent on the various duties, organization charts, and payroll records. (j) Conditions of employment. (2) Live-in requirements are acceptable for household domestic service workers only if the employer can demonstrate the requirement is essential to perform, in a reasonable manner, the job duties as described by the employer and there are not cost-effective alternatives to a live-in household requirement. Mere employer assertions do not constitute acceptable documentation. For example, a live-in requirement could be supported by documenting two working parents and young children in the household, and/or the existence of erratic work schedules requiring frequent travel and a need to entertain business associates and clients on short notice. Depending upon the situation, acceptable documentation could consist of travel vouchers, written estimates of costs of alternatives such as babysitters, or a detailed listing of the frequency and length of absences of the employer from the home. (k) Layoffs. (2) For the purposes of paragraph (k)(1) of this section, a related occupation is any occupation that requires workers to perform a majority of the essential duties involved in the occupation for which certification is sought. (l) Alien influence and control over job opportunity. i.e. (1) A copy of the articles of incorporation, partnership agreement, business license or similar documents that establish the business entity; (2) A list of all corporate/company officers and shareholders/partners of the corporation/firm/business, their titles and positions in the business' structure, and a description of the relationships to each other and to the alien beneficiary; (3) The financial history of the corporation/company/partnership, including the total investment in the business entity and the amount of investment of each officer, incorporator/partner and the alien beneficiary; and (4) The name of the business' official with primary responsibility for interviewing and hiring applicants for positions within the organization and the name(s) of the business' official(s) having control or influence over hiring decisions involving the position for which labor certification is sought. (5) If the alien is one of 10 or fewer employees, the employer must document any family relationship between the employees and the alien. § 656.18 Optional special recruitment and documentation procedures for college and university teachers. (a) Filing requirements. Application for Permanent Employment Certification (b) Recruitment. (1) A statement, signed by an official who has actual hiring authority from the employer outlining in detail the complete recruitment procedures undertaken; and which must set forth: (i) The total number of applicants for the job opportunity; (ii) The specific lawful job-related reasons why the alien is more qualified than each U.S. worker who applied for the job; and (2) A final report of the faculty, student, and/or administrative body making the recommendation or selection of the alien, at the completion of the competitive recruitment and selection process; (3) A copy of at least one advertisement for the job opportunity placed in a national professional journal, giving the name and the date(s) of publication; and which states the job title, duties, and requirements; (4) Evidence of all other recruitment sources utilized; and (5) A written statement attesting to the degree of the alien's educational or professional qualifications and academic achievements. (c) Time limit for filing. (d) Alternative procedure. § 656.19 Live-in household domestic service workers. (a) Processing. (b) Required documentation. (1) A statement describing the household living accommodations, including the following: (i) Whether the residence is a house or apartment; (ii) The number of rooms in the residence; (iii) The number of adults and children, and ages of the children, residing in the household; and (iv) That free board and a private room not shared with any other person will be provided to the alien. (2) Two copies of the employment contract, each signed and dated prior to the filing of the application by both the employer and the alien (not by their attorneys or agents). The contract must clearly state: (i) The wages to be paid on an hourly and weekly basis; (ii) Total hours of employment per week, and exact hours of daily employment; (iii) That the alien is free to leave the employer's premises during all non-work hours except the alien may work overtime if paid for the overtime at no less than the legally required hourly rate; (iv) That the alien will reside on the employer's premises; (v) Complete details of the duties to be performed by the alien; (vi) The total amount of any money to be advanced by the employer with details of specific items, and the terms of repayment by the alien of any such advance by the employer; (vii) That in no event may the alien be required to give more than two weeks' notice of intent to leave the employment contracted for and the employer must give the alien at least two weeks' notice before terminating employment; (viii) That a duplicate contract has been furnished to the alien; (ix) That a private room and board will be provided at no cost to the worker; and (x) Any other agreement or conditions not specified on the Application for Permanent Employment Certification (3) Documentation of the alien's paid experience in the form of statements from past or present employers setting forth the dates (month and year) employment started and ended, hours of work per day, number of days worked per week, place where the alien worked, detailed statement of duties performed on the job, equipment and appliances used, and the amount of wages paid per week or month. The total paid experience must be equal to one full year's employment on a full-time basis. For example, two year's experience working half-days is the equivalent of one year's full time experience. Time spent in a household domestic service training course can not be included in the required one year of paid experience. Each statement must contain the name and address of the person who signed it and show the date on which the statement was signed. A statement not in English shall be accompanied by a written translation into English certified by the translator as to the accuracy of the translation, and as to the translator's competency to translate. § 656.20 Audit procedures. (a) Review of the labor certification application may lead to an audit of the application. Additionally, certain applications may be selected randomly for audit and quality control purposes. If an application is selected for audit, the Certifying Officer shall issue an audit letter. The audit letter will: (1) State the documentation that must be submitted by the employer; (2) Specify a date, 30 days from the date of the audit letter, by which the required documentation must be submitted; and (3) Advise that if the required documentation has not been sent by the date specified the application will be denied. (i) Failure to provide documentation in a timely manner constitutes a refusal to exhaust available administrative remedies; and (ii) The administrative-judicial review procedure provided in § 656.26 is not available. (b) A substantial failure by the employer to provide required documentation will result in that application being denied under § 656.24 and may result in a determination by the Certifying Officer pursuant to § 656.24 to require the employer to conduct supervised recruitment under § 656.21 in future filings of labor certification applications for up to 2 years. (c) The Certifying Officer may in his or her discretion provide one extension, of up to 30 days, to the 30 days specified in paragraph (a)(2) of this section. (d) Before making a final determination in accordance with the standards in § 656.24, whether in course of an audit or otherwise, the Certifying Officer may: (1) Request supplemental information and/or documentation; or (2) Require the employer to conduct supervised recruitment under § 656.21. [69 FR 77386, Dec. 27, 2004, as amended at 71 FR 35523, June 21, 2006] § 656.21 Supervised recruitment. (a) Supervised recruitment. (b) Requirements. (1) The employer must supply a draft advertisement to the CO for review and approval within 30 days of being notified that supervised recruitment is required. (2) The advertisement must: (i) Direct applicants to send resumes or applications for the job opportunity to the CO for referral to the employer; (ii) Include an identification number and an address designated by the Certifying Officer; (iii) Describe the job opportunity; (iv) Not contain a wage rate lower than the prevailing wage rate; (v) Summarize the employer's minimum job requirements, which can not exceed any of the requirements entered on the application form by the employer; (vi) Offer training if the job opportunity is the type for which employers normally provide training; and (vii) Offer wages, terms and conditions of employment no less favorable than those offered to the alien. (c) Timing of advertisement. (2) The employer will notify the CO when the advertisement will be placed. (d) Additional or substitute recruitment. (e) Recruitment report. (1) Identify each recruitment source by name and document that each recruitment source named was contacted. This can include, for example, copies of letters to recruitment sources such as unions, trade associations, colleges and universities and any responses received to the employer's inquiries. Advertisements placed in newspapers, professional, trade, or ethnic publications can be documented by furnishing copies of the tear sheets of the pages of the publication in which the advertisements appeared, proof of publication furnished by the publication, or dated copies of the web pages if the advertisement appeared on the web as well as in the publication in which the advertisement appeared. (2) State the number of U.S. workers who responded to the employer's recruitment. (3) State the names, addresses, and provide resumes (other than those sent to the employer by the CO) of the U.S. workers who applied for the job opportunity, the number of workers interviewed, and the job title of the person who interviewed the workers. (4) Explain, with specificity, the lawful job-related reason(s) for not hiring each U.S. worker who applied. Rejection of one or more U.S. workers for lacking skills necessary to perform the duties involved in the occupation, where the U.S. workers are capable of acquiring the skills during a reasonable period of on-the-job training, is not a lawful job-related reason for rejecting the U.S. workers. For the purpose of this paragraph (e)(4), 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 during a reasonable period of on-the-job training. (f) The employer shall supply the CO with the required documentation or information within 30 days of the date of the request. If the employer does not do so, the CO shall deny the application. (g) The Certifying Officer in his or her discretion, for good cause shown, may provide one extension to any request for documentation or information. § 656.24 Labor certification determinations. (a)(1) The Office of Foreign Labor Certification Administrator (OFLC Administrator) is the National Certifying Officer. The OFLC Administrator 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 Office of Foreign Labor Certification Administrator (OFLC Administrator). If the OFLC Administrator 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 OFLC Administrator. (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 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 (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 § 656.26 (a) and (b); (3) Advise that failure to request review within 30 days of the date of the determination, as specified in § 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 § 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 § 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) For applications submitted after July 16, 2007, a request for reconsideration may include only: (i) Documentation that the Department actually received from the employer in response to a request from the Certifying Officer to the employer; or (ii) Documentation that the employer did not have an opportunity to present previously to the Certifying Officer, but that existed at the time the Application for Permanent Labor Certification was filed, and was maintained by the employer to support the application for permanent labor certification in compliance with the requirements of § 656.10(f). (3) Paragraphs (g)(1) and (2) of this section notwithstanding, the Certifying Officer will not grant any request for reconsideration where the deficiency that caused denial resulted from the applicant's disregard of a system prompt or other direct instruction. (4) The Certifying Officer may, in his or her discretion, reconsider the determination or treat it as a request for review under § 656.26(a). [69 FR 77386, Dec. 27, 2004, as amended at 71 FR 35523, June 21, 2006; 72 FR 27945, May 17, 2007] § 656.26 Board of Alien Labor Certification Appeals review of denials of labor certification. (a) Request for review. (2) A request for review of a denial or revocation: (i) Must be sent within 30 days of the date of the determination to the Certifying Officer who denied the application or revoked the certification; (ii) Must clearly identify the particular labor certification determination for which review is sought; (iii) Must set forth the particular grounds for the request; and (iv) Must include a copy of the Final Determination. (3) A request for review of debarment: (i) Must be sent to the Administrator, Office of Foreign Labor Certification, within 30 days of the date of the debarment determination; (ii) Must clearly identify the particular debarment determination for which review is sought; (iii) Must set forth the particular grounds for the request; and (iv) Must include a copy of the Notice of Debarment. (4)(i) With respect to a denial of the request for review, statements, briefs, and other submissions of the parties and amicus curiae must contain only legal argument and only such evidence that was within the record upon which the denial of labor certification was based. (ii) With respect to a revocation or a debarment determination, the BALCA proceeding may be de novo. (b) Upon the receipt of a request for review, the Certifying Officer immediately must assemble an indexed Appeal File: (1) The Appeal File must be in chronological order, must have the index on top followed by the most recent document, and must have consecutively numbered pages. The Appeal File must contain the request for review, the complete application file, and copies of all the written material, such as pertinent parts and pages of surveys and/or reports upon which the denial was based. (2) The Certifying Officer must send the Appeal File to the Board of Alien Labor Certification Appeals, Office of Administrative Law Judges, 800 K Street, NW., Suite 400-N, Washington, DC 20001-8002. (3) The Certifying Officer must send a copy of the Appeal File to the employer. The employer may furnish or suggest directly to the Board of Alien Labor Certification Appeals the addition of any documentation that is not in the Appeal File, but that was submitted to DOL before the issuance of the Final Determination. The employer must submit such documentation in writing, and must send a copy to the Associate Solicitor for Employment and Training Legal Services, Office of the Solicitor, U.S. Department of Labor, Washington, DC 20210. (c) Debarment Appeal File. (1) The Appeal File must be in chronological order, must have the index on top followed by the most recent document, and must have consecutively numbered pages. The Appeal File must contain the request for review, the complete application file(s), and copies of all written materials, such as pertinent parts and pages of surveys and/or reports or documents received from any court, DHS, or the Department of State, upon which the debarment was based. (2) The Administrator, Office of Foreign Labor Certification, must send the Appeal File to the Board of Alien Labor Certification Appeals, Office of Administrative Law Judges, 800 K St., NW., Suite 400-N, Washington, DC 20001-8002. (3) The Administrator, Office of Foreign Labor Certification, must send a copy of the Appeal File to the debarred person or entity. The debarred person or entity may furnish or suggest directly to the Board of Alien Labor Certification Appeals the addition of any documentation that is not in the Appeal File. The debarred person or entity must submit such documentation in writing, and must send a copy to the Associate Solicitor for Employment and Training Legal Services, Office of the Solicitor, U.S. Department of Labor, 200 Constitution Ave., NW., Washington, DC 20210. [69 FR 77386, Dec. 27, 2004, as amended at 72 FR 27945, May 17, 2007] § 656.27 Consideration by and decisions of the Board of Alien Labor Certification Appeals. (a) Panel designations. (b) Briefs and Statements of Position. (c) Review on the record. (1) Affirm the denial of the labor certification, the revocation of certification, or the affirmation of the PWD; or (2) Direct the Certifying Officer to grant the certification, overrule the revocation of certification, or overrule the affirmation of the PWD; or (3) Direct that a hearing on the case be held under paragraph (e) of this section. (d) Notifications of decisions. (e) Hearings Notification of hearing. (2) Hearing procedure. (ii) For the purposes of this paragraph (e)(2), references in 29 CFR part 18 to: “administrative law judge” mean the Board of Alien Labor Certification Appeals member or the Board of Alien Labor Certification Appeals panel duly designated under § 656.27(a); “Office of Administrative Law Judges” means the Board of Alien Labor Certification Appeals; and “Chief Administrative Law Judge” means the Chief Administrative Law Judge in that official's function of chairing the Board of Alien Labor Certification Appeals. [69 FR 77386, Dec. 27, 2004, as amended at 85 FR 13029, Mar. 6, 2020; 85 FR 30615, May 20, 2020] § 656.30 Validity of and invalidation of labor certifications. (a) Priority date. (2) The filing date, established under § 656.17(c), of an approved labor certification may be used as a priority date by the Department of Homeland Security and the Department of State, as appropriate. (b) Expiration of labor certifications. (1) An approved permanent labor certification granted on or after July 16, 2007 expires if not filed in support of a Form I-140 petition with the Department of Homeland Security within 180 calendar days of the date the Department of Labor granted the certification. (2) An approved permanent labor certification granted before July 16, 2007 expires if not filed in support of a Form I-140 petition with the Department of Homeland Security within 180 calendar days of July 16, 2007. (c) Scope of validity. (1) A permanent labor certification for a Schedule A occupation or sheepherders is valid only for the occupation set forth on the Application for Alien Employment Certification Application for Permanent Employment Certification (2) A permanent labor certification involving a specific job offer is valid only for the particular job opportunity, the alien named on the original application (unless a substitution was approved prior to July 16, 2007), and the area of intended employment stated on the Application for Alien Employment Certification Application for Permanent Employment Certification (d) Invalidation of labor certifications. (e) Duplicate labor certifications. (2) The Certifying Officer shall issue a duplicate labor certification to a Consular or Immigration Officer at the written request of an alien, employer, or an alien's or employer's attorney/agent. Such request for a duplicate labor certification must be addressed to the Certifying Officer who issued the labor certification; must include documentary evidence from a Consular or Immigration Officer that a visa application or visa petition, as appropriate, has been filed; and must include a Consular Office or DHS tracking number. (3) A duplicate labor certification shall be issued by the Certifying Officer with the same filing and expiration dates, as described in paragraphs (a) and (b) of this section, as the original approved labor certification. [69 FR 77386, Dec. 27, 2004, as amended at 72 FR 27946, May 17, 2007] § 656.31 Labor certification applications involving fraud, willful misrepresentation, or violations of this part. The following provisions apply to applications filed under both this part and 20 CFR part 656 in effect prior to March 28, 2005, and to any certifications resulting from those applications. (a) Denial. (b) Possible fraud or willful misrepresentation. (2) A suspension pursuant to paragraph (b)(1) of this section may last initially for up to 180 days. No later than 180 days after the suspension began, if no criminal indictment or information has been issued, or judicial proceedings have not been concluded, the National Certifying Officer may resume processing some or all of the applications, or may extend the suspension in processing until completion of any investigation and/or judicial proceedings. (c) Criminal indictment or information. (d) No finding of fraud or willful misrepresentation. (e) Finding of fraud or willful misrepresentation. (1) Any suspension of processing of pending applications related to that employer, attorney, or agent will terminate. (2) The Certifying Officer will decide each such application on its merits, and may deny any such application as provided in § 656.24 and in paragraph (a) of this section. (3) In the case of a pending application involving an attorney or agent found to have committed fraud or willful misrepresentation, DOL will notify the employer associated with that application of the finding and require the employer to notify DOL in writing, within 30 days of the notification, whether the employer will withdraw the application, designate a new attorney or agent, or continue the application without representation. Failure of the employer to respond within 30 days of the notification will result in a denial. If the employer elects to continue representation by the attorney or agent, DOL will suspend processing of affected applications while debarment proceedings are conducted under paragraph (f) of this section. (f) Debarment. (i) The sale, barter, or purchase of permanent labor applications or certifications, or any other action prohibited under § 656.12; (ii) The willful provision or willful assistance in the provision of false or inaccurate information in applying for permanent labor certification; (iii) A pattern or practice of a failure to comply with the terms of the Form ETA 9089 or Form ETA 750; (iv) A pattern or practice of failure to comply in the audit process pursuant to § 656.20; (v) A pattern or practice of failure to comply in the supervised recruitment process pursuant to § 656.21; or (vi) Conduct resulting in a determination by a court, DHS or the Department of State of fraud or willful misrepresentation involving a permanent labor certification application, as referenced in § 656.31(e). (2) The Notice of Debarment shall be in writing; shall state the reason for the debarment finding, including a detailed explanation of how the employer, attorney or agent has participated in or facilitated one or more of the actions listed in paragraphs (f)(1)(i) through (v) of this section; shall state the start date and term of the debarment; and shall identify appeal opportunities under § 656.26. The debarment shall take effect on the start date identified in the Notice of Debarment unless a request for review is filed within the time permitted by § 656.26. DOL will notify DHS and the Department of State regarding any Notice of Debarment. (g) False statements. Application for Permanent Employment Certification Application for Alien Employment Certification [72 FR 27946, May 17, 2007] § 656.32 Revocation of approved labor certifications. (a) Basis for DOL revocation. (b) Department of Labor procedures for revocation. Notice of Intent to Revoke (2) If rebuttal evidence is not filed by the employer, the Notice of Intent to Revoke (3) If the employer files rebuttal evidence and the Certifying Officer determines the certification should be revoked, the employer may file an appeal under § 656.26. (4) The Certifying Officer will inform the employer within 30 days of receiving any rebuttal evidence whether or not the labor certification will be revoked. (5) If the labor certification is revoked, the Certifying Officer will also send a copy of the notification to the DHS and the Department of State. Subpart D—Determination of Prevailing Wage § 656.40 Determination of prevailing wage for labor certification purposes. (a) Application process. (b) Determinations. (1) Except as provided in paragraphs (e) and (f) of this section, if the job opportunity is covered by a collective bargaining agreement (CBA) that was negotiated at arms-length between the union and the employer, the wage rate set forth in the CBA agreement is considered as not adversely affecting the wages of U.S. workers similarly employed, that is, it is considered the “prevailing wage” for labor certification purposes. (2) If the job opportunity is not covered by a CBA, the prevailing wage for labor certification purposes shall be the arithmetic mean, except as provided in paragraph (b)(3) of this section, of the wages of workers similarly employed in the area of intended employment. The wage component of the DOL Occupational Employment Statistics Survey shall be used to determine the arithmetic mean, unless the employer provides an acceptable survey under paragraph (g) of this section. (3) If the employer provides a survey acceptable under paragraph (g) of this section that provides a median and does not provide an arithmetic mean, the prevailing wage applicable to the employer's job opportunity shall be the median of the wages of workers similarly employed in the area of intended employment. (4) The employer may utilize a current wage determination in the area under the Davis-Bacon Act, 40 U.S.C. 276a et seq., et seq. (c) Validity period. (d) Similarly employed. (1) Having jobs requiring a substantially similar level of skills within the area of intended employment; or (2) If there are no substantially comparable jobs in the area of intended employment, having substantially comparable jobs with employers outside of the area of intended employment. (e) Institutions of higher education and research entities. (1) The organizations listed in this paragraph (e) are defined as follows: (i) Institution of higher education (A) Admits as regular students only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate; (B) Is legally authorized within such state to provide a program of education beyond secondary education; (C) Provides an educational program for which the institution awards a bachelor's degree or provides not less than a two-year program that is acceptable for full credit toward such a degree; (D) Is a public or other nonprofit institution; and (E) Is accredited by a nationally recognized accrediting agency or association or, if not so accredited, is an institution that has been granted preaccreditation status by such an agency or association that has been recognized by the Secretary of Education for the granting of preaccreditation status, and the Secretary of Education has determined there is satisfactory assurance the institution will meet the accreditation standards of such an agency or association within a reasonable time. (ii) Affiliated or related nonprofit entity (iii) Nonprofit research organization or Governmental research organization (2) Nonprofit organization or entity (f) Professional athletes. (1) A team that is a member of an association of six or more professional sports teams whose total combined revenues exceed $10,000,000 per year, if the association governs the conduct of its members and regulates the contests and exhibitions in which its member teams regularly engage; or (2) Any minor league team that is affiliated with such an association. (g) Employer-provided wage information. (2) In each case where the employer submits a survey or other wage data for which it seeks acceptance, the employer must provide the NPC with enough information about the survey methodology, including such items as sample size and source, sample selection procedures, and survey job descriptions, to allow the NPC to make a determination about the adequacy of the data provided and validity of the statistical methodology used in conducting the survey in accordance with guidance issued by the OFLC national office. (3) The survey submitted to the NPC must be based upon recently collected data. (i) A published survey must have been published within 24 months of the date of submission to the NPC, must be the most current edition of the survey, and the data upon which the survey is based must have been collected within 24 months of the publication date of the survey. (ii) A survey conducted by the employer must be based on data collected within 24 months of the date it is submitted to the NPC. (4) If the employer-provided survey is found not to be acceptable, the NPC will inform the employer in writing of the reasons the survey was not accepted. (5) The employer, after receiving notification that the survey it provided for NPC consideration is not acceptable, may file supplemental information as provided by paragraph (h) of this section, file a new request for a PWD, or appeal under § 656.41. (h) Submittal of supplemental information by employer. (2) The NPC will consider one supplemental submission about the employer's survey or the skill level the NPC assigned to the job opportunity or any other legitimate basis for the employer to request such a review. If the NPC does not accept the employer's survey after considering the supplemental information, or affirms its determination concerning the skill level, it will inform the employer of the reasons for its decision. (3) The employer may then apply for a new wage determination or appeal under § 656.41 of this part. (i) Frequent users. (j) Fees prohibited. [69 FR 77386, Dec. 27, 2004, as amended at 73 FR 78068, Dec. 19, 2008; 85 FR 63915, Oct. 8, 2020; 86 FR 70731, Dec. 13, 2021] § 656.41 Review of prevailing wage determinations. (a) Review of NPC PWD. (b) Processing of request by NPC. (c) Review on the record. (d) Request for review by BALCA. (1) The request for review, statements, briefs, and other submissions of the parties and amicus curiae must contain only legal arguments and only such evidence that was within the record upon which the director made his/her affirmation of the PWD. (2) The request for review must be in writing and addressed to the director of the NPC making the determination. Upon receipt of a request for a review, the director will assemble an indexed appeal file in reverse chronological order, with the index on top followed by the most recent document. (3) The director will send the Appeal File to the Office of Administrative Law Judges, BALCA. The BALCA handles the appeals in accordance with §§ 656.26 and 656.27. [73 FR 78069, Dec. 19, 2008]