[Federal Register Volume 61, Number 78 (Monday, April 22, 1996)]
[Proposed Rules]
[Pages 17610-17614]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9911]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 656
RIN 1205-A152
Labor Certification Process for the Permanent Employment of
Aliens; Researchers Employed by Colleges and Universities
AGENCY: Employment and Training Administration, Labor.
ACTION: Proposed rule.
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SUMMARY: The Employment and Training Administration of the Department
of Labor proposes to amend its regulations relating to labor
certification for permanent employment of immigrant aliens in the
United States. The proposed amendments would change the way prevailing
wage determinations are made for researchers employed by colleges and
universities. The proposed rule also would change
[[Page 17611]]
the way prevailing wages are determined for colleges and universities.
The proposed rule also would change the way prevailing wages are
determined for colleges and universities filing H-1B labor condition
applications on behalf of researchers, since the regulations governing
prevailing wage determinations for the permanent program are followed
by State Employment Security Agencies in determining prevailing wages
for the H-1B program.
DATES: Interested persons are invited to submit written comments on the
proposed rule on or before May 22, 1996.
ADDRESSES: Submit written comments to the Assistant Secretary for
Employment and Training, U.S. Department of Labor, 200 Constitution
Avenue NW., Room N-4456, Washington, DC 20210, Attention: John M.
Robinson, Deputy Assistant Secretary.
FOR FURTHER INFORMATION CONTACT:
Contact Denis M. Gruskin, Senior Specialist, Division of Foreign labor
Certifications, Employment and Training Administration, Room N-4456,
200 Constitution Avenue NW., Washington, DC 20210. Telephone: (202)
219-5263 (this is not a toll-free number).
SUPPLEMENTARY INFORMATION:
A. Permanent Alien Employment Certification Process
Before the Department of State (DOS) and the Immigration and
Naturalization Service (INS) may issue visas and admit certain
immigrant aliens to work permanently in the United States, the
Secretary of Labor (Secretary) first must certify to the Secretary of
State and to the Attorney General that:
(a) There are not sufficient United States workers who are able,
willing, qualified, and available at the time of the application for a
visa and admission into the United States and at the place where the
alien is to perform the work; and
(b) The employment of such aliens will not adversely affect the
wages and working conditions of similarly employed United States
workers. 8 U.S.C. 1182(a)(5)(A).
If the Secretary, through the Employment and Training
Administration (ETA) of the Department of Labor (DOL or Department)
determines that there are no able, willing, qualified, and available
U.S. workers, and that the employment of the alien will not adversely
affect the wages and working conditions of similarly employed U.S.
workers, DOL so certifies to INS and to the DOS, by issuing a permanent
alien labor certification.
If DOL cannot make either of the above findings, the application
for permanent alien employment certification is denied. DOL may be
unable to make either of the two required findings for one or more
reasons, including, but not limited to:
(a) The employer has not adequately recruited U.S. workers for the
job offered to the alien, or has not followed the proper procedural
steps in 20 CFR part 656. These recruitment requirements and procedural
steps are designed to test the labor market for available U.S. workers.
They include providing notice of the job opportunity to the bargaining
representative (if any) or posting of the job opportunity on the
employer's premises, placing an advertisement in an appropriate
publication, and placing a job order for 30 days with the appropriate
local Employment Service office.
(b) The employer has not met its burden of proof under section 291
of the Immigration and Nationality Act (INA) [8 U.S.C. 1361], that is,
the employer has not submitted sufficient evidence of attempts to
obtain qualified, willing, able, and available U.S. workers and/or the
employer has not submitted sufficient evidence that the wages and
working conditions which the employer is offering will not adversely
affect the wages and working conditions of similarly employed U.S.
workers. With respect to the burden of proof, section 291 of the INA
states, in pertinent part, that:
Whenever any person makes application for a visa or any other
document 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 for such
visa or such document, or is not subject to exclusion under any
provision of (the INA) * * *.
B. Department of Labor Regulations
The Department has promulgated regulations, at 20 CFR part 656,
governing the labor certification process described above for the
permanent employment of immigrant aliens in the United States. Part 656
was promulgated pursuant to section 212(a)(14) of the INA (now at
section 212(a)(5)(A)). 8 U.S.C. 1182(a)(5)(A).
These regulations set forth the factfinding process designed to
develop information sufficient to support the granting or denial of a
permanent labor certification. They describe the potential of the
nationwide system of public employment service offices to assist
employers in finding available U.S. workers and how the factfinding
process is utilized by DOL as the primary basis of developing
information for the certification determinations. See also 20 CFR parts
651-658; and the Wagner-Peyser Act (29 U.S.C. Chapter 4B).
Part 655 sets forth the responsibility of employers who desire to
employ immigrant aliens permanently in the United States. Such
employers are required to demonstrate that they have attempted to
recruit U.S. workers through advertising, through the Federal-State
Employment Service System, and by other specified means. The purpose is
to assure an adequate test of the availability of qualified, willing
and able U.S. workers to perform the work, and to insure that aliens
are not employed under conditions adversely affecting the wages and
working conditions of similarly employed U.S. workers.
C. Prevailing Wages and Researchers
Covered employers wishing to employ immigrant workers must recruit
for U.S. workers at prevailing wages. State employment security
agencies (SESA's or State agencies) survey prevailing wage rates on
behalf of DOL. The permanent labor certification regulations at
Sec. 656.40 specify how State agencies are to calculate prevailing
wages. The prevailing wage methodology set forth is used not only in
determining prevailing wages for job opportunities involved in
applications for permanent employment certification, but is also
followed in determining prevailing wages for the H-2B temporary
nonagricultural certification program, the H-1B labor condition
application (LCA) program, and the F-1 student off-campus employment
program. See 20 CFR part 655, subparts A, H, and J, respectively. In
each of these programs, the applicable legislative and/or regulatory
history require that prevailing wages be determined in accordance with
the requirements of the permanent labor certification regulations at 20
CFR 656.40.
The INA requires that the wages paid to an H-1B professional worker
be the higher of the actual wage paid to workers in the occupation or
the prevailing wage for the occupational classification in the area of
employment. The H-1B regulations incorporate the language of 20 CFR
656.40 (as required by H.R. Conference Report, No. 101-955, October 26,
1990, page 122) and provide employers filing H-1B applications the
option of obtaining a prevailing wage determination from the SESA,
using an independent authoritative source, or other legitimate
[[Page 17612]]
source, as defined at Sec. 655.731(a)(2)(iii) (B) and (C) of the H-1B
regulations.
Section 656.40 of the permanent labor certification regulations
requires that in the absence of a wage determination issued under the
Davis-Bacon Act, the Service Contract Act, or a collective bargaining
agreement, the prevailing wage shall be the weighted average rate of
wages paid to workers similarly employed in the area of intended
employment, i.e., ``the rate of wages to be determined, to the extent
feasible, by adding the wage paid to workers similarly employed in the
area of intended employment and dividing the total by the number of
such workers.'' Section 656.40(b) further provides that ``similarly
employed'' is defined as having substantially comparable jobs in the
occupational category in the area of intended employment.
D. Effects of Hathaway Children's Services on Prevailing Wages
Under the en banc decision of the Board of Alien Labor
Certification Appeals (hereinafter referred to as BALCA or Board) in
Hathaway Children's Service (91-INA-388, February 4, 1994), prevailing
wages are calculated by using wage data obtained by surveying employers
across industries in the occupation in the area of intended employment.
In Hathaway, BALCA overruled its decision in Tuskegee University, 87-
INA-561, Feb. 23, 1988, en banc, which interpreted Sec. 656.40 to
permit an examination of the nature of the employer's business in
ascertaining the appropriate prevailing wage. 87-INA-561 at 4. In
Tuskegee the Board said, in relevant part:
Thus to be ``similarly employed'' for purpose of a prevailing
wage determination, it is not enough that the jobs being compared
are in the same occupational category they must also be
``substantially comparable.'' Accordingly, it is wrong to focus only
on the job title or duties; the totality of the job opportunity must
be examined * * *.
It is clear that it is not only the job titles, but the nature
of the business or institution where the jobs are located--for
example, public or private, secular or religious, profit or non-
profit, multinational corporation or individual proprietorship--
which must be evaluated in determining whether the jobs are
``substantially comparable.''
In Hathaway, the Board declined to make an exception for
maintenance repairers employed by non-profit institutions, analogous to
the exception it had made in Tuskegee. The employer in Hathaway, a non-
profit United Way affiliate, urged that the Board's decision in
Tuskegee should be dispositive. The employer argued that the rationale
in Tuskegee necessarily extends to non-profit employers, thereby
differentiating them from for-profit employers.
The Board stated in Hathaway, that its holding in Tuskegee was ill-
advised and should be explicitly overruled. The Board went on to say
that:
The underlying purpose of establishing a prevailing wage rate is
to establish a minimum level of wages for workers employed in jobs
requiring similar skills and knowledge levels in a particular
locality. It follows that the term ``similarly employed'' does not
refer to the nature of the employer's business as such; on the
contrary, it must be determined on the basis of the similarity of
the skills and knowledge required of the job offered. Of course the
nature of the employer's business may be reflected in that
determination, to the extent it bears on the knowledge and skills
required to perform the duties of the job * * *. But neither the
record in Tuskegee nor the record before us today [in Hathaway,],
suggests that the skills and knowledge required to perform the
duties of the job opportunity being offered are any different
depending upon the employer's financial ability to pay the going
rate. Specifically, there is no evidence to suggest that the duties
of the job offered, either as an associate professor of physics in
Tuskegee or as a maintenance repairman in the present case
[Hathaway,], differed as between charitable non-profit institutions
and businesses operated for a profit. We find no basis, under the
Act or its implementing regulations, for allowing this Employer to
hire an alien so that it can pay sub-standard wages to its
maintenance repairer or other workers, on the ground that it cannot
pay the prevailing wage, while we tell the Mom-and-Pop shop next
door or around the corner that ``There is no provision in the law or
regulations which allows for waiver of the prevailing wage
requirements on the basis of an Employer's financial hardship''
[citing Norberto La Rosa (89-INA-287), March 27, 1991] * * *.
In accordance with the holding in Hathaway, SESA's were instructed
to survey all employers, without regard to the nature of the employer,
in the area of intended employment in determining prevailing wages for
an occupation.
It has since been asserted that implementation of this policy
resulted in considerably higher prevailing wage determinations for
research positions in colleges and universities. The higher education
community maintains that this policy will jeopardize its ability to
recruit foreign researchers with talents and skills not readily
available in the U.S. Further, the Department has received comments and
inquiries from Congress and other Federal agencies and organizations,
such as the Council of Economic Advisers (CEA), National Science
Foundation (NSF), the Department of Defense, Defense Research
Engineering (DRE), Office of Science and Technology Policy (OSTP),
National Institutes of Health (NIH), National Aeronautics and Space
Administration (NASA), United States Department of Agriculture (USDA),
United States Geological Survey (USGS), Department of Energy (DOE), and
Department of Transportation (DOT), expressing concern about the
Department's change of policy in determining prevailing wages for
researchers employed by universities.
E. Basis for Proposed Rule
The Department believes there are substantial policy reasons to
propose an exception whereby prevailing wage determinations for
researchers employed by colleges and universities should be based
solely on the wages paid by such institutions. These policy reasons are
discussed below.
1. Existing Precedent
Congress established precedent in the INA for treating colleges and
universities differently in their employment of talented, highly
qualified scholars who are members of the teaching profession. Special
procedures in DOL regulations were established for college and
university teachers because of the provisions at 8 U.S.C.
1182(a)(5)(A)(i) (I) and (II) which require, in relevant part, that DOL
must determine in cases involving aliens that are members of the
teaching profession that the U.S. applicant is at least as qualified
(equally qualified) as the alien before a labor certification can be
denied because a U.S. worker is available for the job opportunity. For
all other occupations, the DOL Certifying Officer need only find that
the U.S. applicant is qualified or meets the employer's minimum job
requirements. The ``special handling'' procedures for college and
university teachers provide for a more limited test of the labor market
than the basic process at 20 CFR 656.21 to successfully apply for a
labor certification.
The ``equally qualified'' language was added to section 212(a)(14)
of the INA [now at section 212(a)(5)(A), 8 U.S.C. 1182(a)(5)(A)] on
October 20, 1976, by the Immigration and Nationality Act Amendments of
1976, Pub. L. 94-571, Section 5, 90 Stat. 2705. The Judiciary Committee
of the House of Representatives stated, on passage of the bill, that:
The Committee believes that the Department of Labor has impeded
the efforts of colleges and universities to acquire outstanding
educators or faculty members who posses specialized knowledge or a
unique combination of administrative and teaching skills. As a
result, this legislation includes an amendment to section 212(a)(14)
which requires the Secretary of Labor to
[[Page 17613]]
determine that ``equally qualified'' American workers are available
in order to deny a labor certification for members of the teaching
profession * * *.
(H. Rep. No. 1553, 945h Cong., 2d Sess. 11 (Sept 15, 1976))
Prevailing wage determinations for college and university teachers
are necessarily based solely on the wages paid by colleges and
universities, since such teachers are employed only by institutions of
higher education. Research positions are closely related to teaching
(faculty) positions and often involve teaching duties, albeit not in a
classroom setting. As stated in a letter dated July 25, 1995, which the
Department received from the Association of American Universities
(AAU):
Teaching is a primary mission of universities and occurs in all
university settings. Teaching and research are inextricably
intermingled in universities with research extending into
undergraduate education, and teaching extending into postdoctoral
education. Academic research scientists are expected to operate as
teachers as well as researchers. University teaching includes a wide
range of activities beyond the traditional classroom lecture, such
as seminars, advising and other forms of mentoring. Some of the most
effective teaching about research is carried out by doing research,
and university research personnel often operate as student and
teacher at the same time in the same setting: a postdoctoral fellow
is instructed by the faculty researchers with whom he or she is
working at the same time he or she serves as a teacher for graduate
and undergraduate students working in the same lab.
2. Impact of Hathaway and Reinstatement of Previous Practice
The proposed rule would merely reinstate the practice that existed
before the decision in Hathaway of basing prevailing wage
determinations for researchers employed by colleges and universities
solely on the basis of the wages paid by such institutions. Hathaway
has had the greatest impact on colleges and universities wishing to
file H-1B LCA's or permanent labor certification applications on behalf
of researchers. Prior to Hathaway, SESA's in conducting prevailing wage
surveys for researchers employed by colleges and universities
consistently limited prevailing wage surveys to colleges and
universities. ETA is not aware of any other situation in which a
similar practice was consistently followed in determining prevailing
wages for an occupation found in a variety of industries.
The application of the policy resulting from the Hathaway decision
to the determination of prevailing wages for researchers has resulted
in markedly higher prevailing wage determinations than those made
previously. It has been alleged, for example, that prevailing wage
determinations post-Hathaway have been 34 to 93 percent in excess of
the actual wages paid to certain positions. Additionally,
Representative Lamar Smith stated in a letter to the Secretary of Labor
that:
Major research universities would clearly suffer if required to
pay industry-scale wages to researchers. They pay research
associates about $25,000 a year, as opposed to salaries of
approximately $65,000 in industry. Since the amount universities pay
under federal research grants is strictly limited by the federal
government, they would be effectively barred from using immigrants
in these positions. Even in instances where the schools found it
feasible to pay the higher salaries out of their own funds, this
would create discord with American employees and divert badly needed
resources. The end result could be dramatically impeded scientific
and technological progress in the United States.
Colleges and universities have also maintained that it would be
untenable for them to pay international staff more than their
counterparts who are United States citizens and lawful permanent
residents, and they would be forced to either increase the wages of
similarly employed U.S. citizens or stop hiring international faculty
and researchers on H-1B visas.
3. Nonproprietary Nature of Academic Research
It has also been advanced that a significant reason for basing
prevailing wage determinations for researchers employed by colleges and
universities solely on the wages paid by such institutions relates to
the nonproprietary nature of the research performed in an academic
setting as opposed to that performed in a private, for-profit setting.
The research product delivered by researchers in private, for-profit
organizations is proprietary in nature and can be appropriated by the
employing institution for commercial purposes. As pointed out by the
AAU in its July 25, 1995, letter:
Academic research scientists are expected to disseminate the
results of their research promptly and widely through publication in
peer-reviewed scientific journals; indeed, in the highly competitive
marketplace of fundamental research, professional recognition is
accorded to the first to publish a new discovery.
Industrial scientists are expected to apply the results of their
research to product development within their company (emphasis in
original); often, meeting this objective in a competitive
marketplace will require the industrial scientist to withhold
publishing research results of proprietary information either
indefinitely or at least until that information has been
incorporated into the company's development process.
This difference in application of the results of research is so
fundamental that it constitutes one of the greatest barriers to
cooperation between academic and industrial research programs. Most
universities have rules prohibiting the withholding of research
results, and many companies are reluctant to permit industry-
sponsored research results to be freed from proprietary restraints
on dissemination * * *.
The AAU went on to summarize the difference between academic
research scientists and industrial scientists, in relevant part, as
follows:
Academic research scientists must be able to expand the
frontiers of knowledge through an independently initiated and
sustained fundamental research program and be able to translate the
underlying body of knowledge, theories, principles and research
procedures to succeeding generations of researchers. In contrast,
industrial scientists must be able to translate basic discoveries
into a program of applied research and development that has a
reasonably high probability of producing marketable products and
processes as end results.
The Department specifically requests comments on whether there are
attributes of academic research that distinguish it from research
conducted by private, for-profit employers.
4. Concern of Other Federal Agencies
As indicated above, other Federal agencies and organizations, with
an interest in the research talent, knowledge, abilities and skills
available to the U.S. academic community, have expressed concerns that
the Hathaway decision could interfere with the ability of institutions
of higher education to obtain the services of talented foreign scholars
and researchers. These agencies which included, as stated above, the
CEA, NSF, DRE, OSTP, NIH, NASA, USDA, USGS, DOE, and DOT, expressed the
view that prevailing wage determinations for researchers employed by
institutions of higher education should not include wage data from
private sector employers.
Similarly, the Department is aware that Congress is examining
legislative options to address the concerns of the research community
on this matter. These options would extend the concept discussed in
this proposed rule to prevailing wage rates in other employment, such
as researchers employed by (a) institutions of higher education (as
proposed above), and (b) federal research agencies and their affiliated
nonprofit research institutions which are engaged in basic research and
which employ postdoctoral fellows and visiting scientists in a manner
similar to colleges and universities. While this
[[Page 17614]]
proposed rule would cover the college and university researchers, at
this time the Department has insufficient information on whether
extending the rule change to researchers in other employment is
supportable. Commenters, therefore, are invited to submit comments
about such a regulatory change and the Department will consider those
and any other comments in the development of the final rule.
5. Non-Pecuniary Factors
The academic community and others believe that intangible, non-
pecuniary incentives to working in an academic environment should be
considered in determining prevailing wages for researchers employed by
institutions of higher education. Such intangible benefits, according
to the CEA, ``may include autonomy in choice of research, contact with
students, immersion in an educational environment, and other types of
participation in a university environment.'' The Department is
interested in comments that specify the nature of these intangible
benefits and how they are unique to higher education.
Executive Order 12866
The Department has determined that this proposed rule is not an
``economically significant regulatory action'' within the meaning of
Executive Order 12866, in that it will not have an economic effect on
the economy of $100 million or more or adversely affect in a material
way the economy, a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local, or
tribal governments or communities.
While it is not economically significant, the Office of Management
and Budget reviewed the proposed rule because of the novel legal and
policy issues raised by the rulemaking.
Regulatory Flexibility Act
The Department of Labor has notified the Chief Counsel for
Advocacy, Small Business Administration, and made the certification
pursuant to the Regulatory Flexibility Act at 5 U.S.C. 605(b), that the
rule does not have a substantial impact on a substantial number of
small entities.
Paperwork Reduction Act
The proposed rule would create no collection of information
requirements.
Catalog of Federal Domestic Assistance Number
This program is listed in the Catalog of Federal Domestic
Assistance at Number 17.203. ``Certification for Immigrant
Workers.''
List of Subjects in 20 CFR Part 656
Adminstrative practice and procedure, Agriculture, Aliens,
Crewmembers, Employment, Enforcement, Fashion models, Forest and forest
products, Gaum, Health professions, Immigration, Labor, Longshore work,
Migrant labor, Nurse, Penalties, Registered nurse, Reporting and
recordkeeping requirements, Specialty occupation, Wages, Working
conditions.
Proposed Rule
Accordingly, it is proposed to amend part 656 of Chapter V of title
20, Code of Federal Regulations, as follows:
PART 656--[AMENDED]
1. The Authority citation for Part 656 continues to read as
follows:
Authority: 8 U.S.C. 1182(a)(5)(A); 29 U.S.C. 49 et seq.; section
122, Pub. L. 101-649, 109 Stat. 4978.
Sec. 656.40 [Amended]
2. Section 656.40 is amended as follows:
a. In the introductory language in paragraph (b), the phrase
``except for researchers employed by colleges and universities'' is
added immediately after the phrase ``For purposes of this section,''.
b. Paragraph (c) is redesignated as paragraph (d), and a new
paragraph (c) is added to read as follows:
Sec. 656.40 Determination of prevailing wage for labor certification
purposes.
* * * * *
(c) For purposes of this section, ``similarly employed'' in the
case of researchers employed by colleges and universities in the area
of intended employment.'' If no researchers are employed by colleges
and universities other than the employer applicant, researchers
employed by colleges and universities outside the area of intended
employment shall be considered ``similarly employed.''
* * * * *
Signed at Washington, DC, this 16th day of April 1996.
Robert B. Reich,
Secretary of Labor.
[FR Doc. 96-9911 Filed 4-19-95; 8:45 am]
BILLING CODE 4510-30-M
