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Directive:

FM 33-93


Status: Cancelled

Subject:
Notice of Proposed Rulemaking: Labor Market Information Pilot Program for the Labor Certification Process for the Permanent Employment of Aliens in the United States

Purpose:
To transmit for your information and for your comments a copy of the Notice of Proposed Rulemaking (NPRM) under the Immigration Act of 1990 as it pertains to the Labor Market Information Pilot Program for the Labor Certification process for the permanent

To

All Regional Administrators

From

Barbara Ann Farmer Administrator for Regional Management

Date

March 24, 1993

Expiration Date
May 31, 1993
Rescissions:    None
Contact :

Questions regarding this FM or the attached NPRM should be addressed to the United States Employment Service, Division of Foreign Labor Certification, attn: Patrick Stange (202-219-5263).

Text :
Reference: Immigration and Nationality Act, 8 U.S.C 1101 et seq., Section 214; Immigration Act of 1990, Public Law 101-649, 104 Stat. 4978; and Proposed 20 CFR Part 656, Subpart E. Background: On November 29, 1990, the Immigration Act of 1990 (IMMACT), Public Law 101-649, 104 Stat. 4978, was enacted. This law amended the Immigration and Nationality Act (INA) (8 U.S.C. 1101, et seq.) and assigned responsibility to the Department of Labor (DOL or Department) for implementing several provisions of IMMACT relating to the entry of certain categories of employment-based immigrants, and to the temporary employment of certain categories of nonimmigrants. Section 212(a)(5)(A) of the INA provides that immigrant aliens in specified employment-based permanent visa categories are excluded from the United States unless the Secretary of Labor (Secretary) has certified to the Secretary of State and the Attorney General that able, willing, and qualified U.S. workers (or equally or more qualified U.S. workers, in the case of college teachers and aliens of exceptional ability in a science or art) are unavailable and employment of the alien will not adversely affect the wages and working conditions of U.S. workers similarly employed. 8 U.S.C. 1182(a)(5)(A). This action is called a labor certification. In section 122(a) of IMMACT, Congress directed the Secretary to conduct a "labor market information pilot program for employment- based immigrants" (LMI pilot program) to determine whether the permanent alien labor certification process could be streamlined by supplementing the present case-by-case process for approving permanent labor certifications with an approach utilizing lists of occupations in which there are labor shortages or surpluses. The legislation provides that, under the pilot program, a determination will be made that labor shortages or surpluses exist in up to 10 defined occupational classifications. Section 122(a) requires that, in making these determinations, the Department consider occupations that have been previously approved under the permanent alien labor certification program as well as labor market and other related information. If it is determined that there is a labor shortage with respect to an occupation, a labor certification under section 212(a)(5)(A) shall be deemed to have been issued for that occupation. If it is determined that there is a labor surplus in an occupation, the Department may only issue a permanent alien labor certification if the employer submits evidence, based on extensive recruiting efforts (including such efforts as the Secretary may require), that the employer meets the requirements for certification under INA section 212(a)(5)(A). The Secretary is required to report to Congress by April 1, 1994, on the operation of the pilot program and whether the program should be extended. The Department has elected to include only shortage occupational classifications in the LMI Pilot Program. The LMI pilot program is not intended to identify labor shortages for any purpose other than to test whether parts of the permanent alien labor certification process can be streamlined, without adversely affecting U.S. workers, in specific geographic areas where labor market information indicates a potential labor shortage in specific occupational classifications. In the absence of direct measures of labor shortages, the Department has elected to use a methodological approach that utilizes labor certification data and a series of indirect labor market indicators of labor shortage combined with expert analysis for purposes of this pilot program. To accomplish this task, the Department used the services of a leading expert on labor market information to develop the list of proposed occupational classifications. Recognizing that current labor shortages tend to be concentrated in specific occupations and in particular localities, a methodological approach was developed that would identify occupational classifications in which significant supply/demand imbalances exist in specific States. Using a range of labor market indicators supplemented by consultation with labor market experts, the methodology identifies occupations and areas in which shortages are likely to exist. Thus, at this stage, the selection of a particular occupation or State for the pilot test should not be interpreted as conclusive evidence that an occupational shortage does, in fact, exist. The Department will conduct an evaluation of the pilot program to provide the basis for the report to Congress required by section 122(a)(4) of IMMACT. The evaluation study will have two purposes. First, it will test the extent to which the project affects time and resources for the INS, ETA, and the economic participants in the affected labor markets. In addition, it will examine the impacts of the pilot procedures on employment levels, wages and working conditions for U.S. workers. The attached FEDERAL REGISTER notice provides the general public with the opportunity to comment on the list of occupations developed through this methodology and proposed for use in the pilot test. Comment is invited on the labor shortage occupational classifications and the geographic areas listed in  656.50 of the proposed rule. Commenters may propose that occupational classifications be added to the list or that those listed be removed. Commenters may make specific comments about subspecialties within each occupational classification. For example, commenters may indicate that a shortage exists of microbiologists but there are sufficient biologists. However, in recommending the addition or deletion of occupations, commenters are asked to: provide statistical data and other documentation that specifically support their recommendations; and provide evidence that, as a result of the adoption of their recommendations, the interests of the State or local economy would be served or the wages and working conditions of local workers would be protected. This documentation should include data such as: the results of surveys or other research conducted by government agencies, employer or professional associations, unions, academic and research institutions or individual experts; and data on State or local unemployment, recent or impending layoffs, the availability of training or education programs, or information concerning other factors relevant to the existence of labor shortages in particular occupations or geographic areas. If commenters are aware of an announced layoff or job cutbacks which affect an occupational classification or state on the list of shortage occupations, they should provide this information to the Department. In classifications, such as computer science, where announcements of layoffs have recently been made, commenters should provide information on the impacts of such layoffs, the types and levels of workers that have become available or are likely to become available, employer efforts to recruit qualified workers from the States affected by the layoffs, and what employer needs can not be met by laid off workers. If occupations are added to the list in the final rule as a result of public comments on this Notice, a comparable number of occupations will be deleted from the list in order to assure that the statutory limit of 10 occupational classifications for the pilot test is observed. Action Required: Regional Administrators are requested to: a. Review the attached NPRM and make comments as appropriate by no later than April 19,1993. b. Transmit the information provided in this FM and the attached NPRM to State Employment Security Agencies for review and comment.

Attachments :
Notice of Proposed Rulemaking. Copies for State Agencies are being sent under separate cover. To obtain a copy of attachment(s), please contact Deloris Norris of the Office of Regional Management at (202) 219-5585.



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