Post-Adjudication Audits of H-2B Petitions in All Occupations Other Than Excepted Occupations in the United States, 3993-3997 [05-1222]

Agencies

• Employment and Training Administration
• DEPARTMENT OF LABOR

[Federal Register Volume 70, Number 17 (Thursday, January 27, 2005)]
[Proposed Rules]
[Pages 3993-3997]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-1222]


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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

RIN 1205-AB36


Post-Adjudication Audits of H-2B Petitions in All Occupations 
Other Than Excepted Occupations in the United States

AGENCIES: Employment and Training Administration, Labor.

ACTION: Proposed rule; request for comments.

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SUMMARY: An H-2B nonimmigrant is admitted temporarily to the United 
States to perform temporary nonagricultural labor or services. The 
Department of Labor's Employment and Training Administration (DOL or 
ETA) and the Department of Homeland Security (DHS) simultaneously are 
proposing changes to the procedures for the issuance of H-2B visas. 
Under this proposed rule, H-2B petitions filed with DHS, with the 
exception of workers in logging, the entertainment industry, or 
professional athletics, will require employers to satisfy specific 
attestations concerning labor market issues. These attestations have 
been developed by the DOL and are included in this rule and are 
incorporated in the DHS regulation. In addition, the DOL will receive 
information on petitions that have been approved and received final 
adjudication from the DHS. The DOL will be conducting post-adjudication 
audits of attestations submitted in support of selected approved H-2B 
petitions received from the DHS.

DATES: Interested persons are invited to submit written comments on the 
proposed rule on or before February 28, 2005.

ADDRESSES: You may submit comments, identified by Regulatory 
Information Number (RIN) 1205-AB36, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the website instructions for submitting comments.
     E-mail: Comments may be submitted by e-mail to 
H2B.Comments@dol.gov. Include RIN 1205-AB36 in the subject line of the 
message.
     U.S. Mail: Submit written comments to the Assistant 
Secretary, Employment and Training Administration, U.S. Department of 
Labor, 200 Constitution Avenue, NW., Room C-4312, Washington, DC 20210, 
Attention: William Carlson, Chief, Division of Foreign Labor 
Certification. Because of security measures, mail directed to 
Washington, DC is sometimes delayed. We will only consider comments 
postmarked by the U.S. Postal Service or other delivery service on or 
before the deadline for comments.
    Instructions: All submissions received must include the RIN 1205-
AB36 for this rulemaking. Receipt of submissions will not be 
acknowledged. Because DOL continues to experience occasional delays in 
receiving postal mail in the Washington, DC area, commenters using mail 
are encouraged to submit any comments early.
    Comments will be available for public inspection during normal 
business hours at the address listed above for mailed comments. Persons 
who need assistance to review the comments will be provided with 
appropriate aids such as readers or print magnifiers. Copies of this 
proposed rule may be obtained in alternative formats (e.g., large 
print, Braille, audiotape, or disk) upon request. To schedule an 
appointment to review the comments and/or to obtain the proposed rule 
in an alternative format, contact the Division of Foreign Labor 
Certification at (202) 693-3010 (this is not a toll-free number).

FOR FURTHER INFORMATION CONTACT: William Carlson, Chief, Division of 
Foreign Labor Certification, Employment and Training Administration, 
200 Constitution Avenue, NW., Room C-4312, Washington, DC 20210, 
telephone: (202) 693-3010 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

I. Background

    Currently, 20 CFR part 655, subpart A, provides that a petitioner 
seeking to employ an H-2B nonimmigrant must establish that employment 
of the alien will not adversely affect United States workers who are 
capable of performing such services or labor and the employment of the 
alien will not adversely affect the wages and working conditions of 
similarly employed United States workers. A petitioner may not file a 
petition with the DHS for an H-2B temporary worker unless the employer 
has applied for and received a labor certification from DOL or the 
Governor of Guam, as appropriate. In order to obtain a labor 
certification, a prospective employer must test the United States labor 
market and, in addition, agree to pay the alien a salary that will not 
adversely affect the wages of United States workers similarly employed. 
A petitioner must demonstrate that the need for the temporary services 
or labor is a one-time occurrence, a seasonal need, a peak load need, 
or an intermittent need. The period of the petitioner's need must be 
less than one year.

II. Proposal

1. Process

    Under the redesigned H-2B program, the DHS will continue to 
administer the petition adjudication process. However, the employer now 
will be required to conduct recruitment before filing its petition. The 
employer also will be required to submit, as part of its petition, 
attestations concerning labor

[[Page 3994]]

market tests and related issues. The required attestation elements are 
set forth in this proposed regulation. The intent of this proposal is 
to ensure there will not be an adverse affect on the wages and working 
conditions of U.S. workers similarly employed. An employer is expected 
to have assembled supporting documentation specified in the regulation 
and will be required to provide the documentation in the event the 
attestations included in the Form I-129 petition are audited by the 
DOL. Although the required attestations are included in this proposed 
regulation, they are part of the required evidence to be submitted in 
support of a Form I-129 petition, which will be adjudicated by the DHS.
    The majority of the items on the attestation form will require the 
employer to check ``yes'' or ``no'' as a response. These questions and 
other information required by the attestation form elicit information 
similar to that required by the current labor certification process. 
For example, the wage offered on the attestation form must be equal to 
or greater than the prevailing wage for the occupation in the area of 
intended employment.
    Upon final adjudication from the DHS, the DOL will conduct audits 
of attestations contained in certain approved H-2B petitions. 
Specifically, the DOL will audit a sample of approved attestations. 
Audited attestations will be identified through a process of pre-
selection and/or randomly drawn samples. In such audits, the DOL will 
limit its examination to whether the employer has complied with all 
required attestations. Employers will be expected to have documentation 
available supporting their attestations and will be required to provide 
this supporting documentation to the DOL within 30 days from notice of 
audit. In the event the DOL determines an employer (1) has 
misrepresented a material fact or has made a fraudulent statement in 
its attestation, or (2) has failed to comply with the terms of the 
attestations contained in its petition, the DOL, after notice to the 
employer and providing an opportunity for a hearing, may make a finding 
that the employer be debarred for a period of up to three years. Once 
such a finding has been issued, the DOL will notify the DHS of this 
determination. The DHS, in accordance with 8 CFR 214.2(h)(20), will not 
approve immigrant petitions under section 204 of the Immigration and 
Nationality Act (Act) or nonimmigrant petitions under section 214(c) of 
the Act for at least the minimum period of time recommended by the DOL.

2. Excepted Occupations Subject to Special Procedures

    Historically, employers seeking H-2B workers in logging, the 
entertainment industry, or professional athletics have followed special 
procedures. Those procedures will remain intact under the new H-2B 
process.

3. Nature of the Attestation

    An employer must attest that:
    (1) The employer is offering, and will offer during the period of 
authorized employment, to pay H-2B workers no less than the prevailing 
wage as determined by the Occupational Employment Statistics (OES) 
survey for the occupational classification in the area of intended 
employment;
    (2) The employer will provide working conditions that are normal to 
workers similarly employed in the area of intended employment;
    (3) There is not a strike, lockout, or work stoppage in the course 
of a labor dispute in the occupational classification in the place of 
employment;
    (4) The employer has placed a job order with America's Job Bank 
(AJB), has placed a Sunday advertisement in a newspaper of general 
circulation, or an advertisement in an appropriate trade journal, and 
has notified the appropriate union(s), if applicable, and the employer 
was unsuccessful in locating qualified United States applicants for the 
job opportunity and has rejected United States workers only for lawful 
job-related reasons;
    (5) The employer has agreed to comply with all Federal, state or 
local laws applicable to the job opportunity; and
    (6) The employer will notify the DHS within 30 days when the 
employment of an H-2B worker has terminated.

4. Prevailing Wage

    Employers filing petitions will be required to utilize the 
prevailing wage information available on the DOL's Online Wage Library 
(OWL), which is accessible via the DOL's Web site at https://
www.flcdatacenter.com/owl.asp.
    Section 212(p)(3) and (4) of the Immigration and Nationality Act (8 
U.S.C. 1182(p)(3) and (4)) as added by the Consolidated Appropriations 
Act, 2005, provides that for prevailing wage surveys in the permanent 
alien labor certification program (and the H-1B and H-1B1 programs) the 
survey shall provide at least four levels of wages commensurate with 
experience, education, and the level of supervision. Although this 
statutory provision does not necessarily apply to H-2B labor 
certifications, it has been DOL's practice to treat prevailing wage 
determinations the same under the H-2B program as under the permanent 
labor certification program. This is consistent with the proposed rule 
below and we request public comment on this issue.

III. Executive Order 12866

    Although this proposed rule is not economically significant, the 
Office of Management and Budget has reviewed the proposed rule. The 
proposed program will not have an economic impact of $100 million or 
more because it does not require the initial filing of documents with 
the DOL.

IV. Regulatory Flexibility Act

    We have notified the Chief Counsel for Advocacy, Small Business 
Administration, and made the certification pursuant to the Regulatory 
Flexibility Act (RFA) at 5 U.S.C. 605(b), that the proposed rule will 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for that certification is as follows: The 
proposed rule would affect only those employers seeking nonimmigrant H-
2B workers for employment in the United States. Based on past filing 
data, the DOL estimates in the upcoming year approximately 5,000 
employers will file approximately 7,000 attestations for nonimmigrant 
H-2B workers. Several employers will file multiple attestations in a 
year. We do not inquire about the size of the employer; however, the 
number of small entities that file attestations in the upcoming year 
will be less than the total number of 5,000 employer-applicants and 
significantly below the potential universe of small businesses to which 
the program is open. Because applications come from employers in all 
industry segments, we consider all small businesses as the appropriate 
universe for comparison purposes. According to the Small Business 
Administration's publication The Regulatory Flexibility Act--An 
Implementation Guide for Federal Agencies, there were 22,400,000 small 
businesses in the United States in 2001. If the universe consists of 
all small businesses, the 5,000 businesses that file for attestations 
would represent less than 0.01 percent of all small businesses. The DOL 
asserts that 0.01 percent is not a substantial number of small 
entities.
    Moreover, the DOL does not believe this rule will have a 
significant economic impact. The DOL estimates that under the current 
regulation, a business spends approximately one hour to prepare the 
necessary ETA 750,

[[Page 3995]]

Part A. This equates to approximately 7,000 hours under the current 
regulation. Under the proposed rule the employer will spend 
substantially less time completing the attestation form. Therefore, the 
proposed rule establishes no additional economic burden on small 
entities, since the recruitment activities and required wage and 
benefit levels are no different from those required under the existing 
program, other than to require that the activities be attested to 
rather than be part of a process of applying for certification. The DOL 
does not believe small businesses will have to incur additional costs 
to perform this additional requirement. See General Administration 
Letter No. 1-95, 60 FR 7216 (February 7, 1995). Further, the filing 
burden is lessened by this rulemaking, since applicants no longer would 
have to file applications with State Workforce Agencies (SWAs) or have 
their applications adjudicated by DOL. The DOL welcomes comments on 
this RFA certification. The DOL is particularly interested in comments 
concerning the universe of small businesses and the assumption that 
small businesses will not incur any additional economic burden as a 
result of this proposal.

V. Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by state, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any 1 year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions are deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

VI. Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Act of 1996. It will not result 
in an annual effect on the economy of $100 million or more; a major 
increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

VII. Executive Order 13132

    This proposed rule will not have a substantial direct effect on the 
states, on the relationship between the National Government and the 
states, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, we have determined this rule does not have sufficient 
federalism implications to warrant the preparation of a summary impact 
statement.

VIII. Assessment of Federal Regulations and Policies on Families

    The proposed regulation does not affect family well-being.

IX. Paperwork Reduction Act

    The information collection requirements necessary to administer the 
program are contained in the DHS regulations. The redesigned H-2B 
program will result in a significant reduction in the paperwork burden 
on employers that use the program. Only the electronic form required by 
the DHS will have to be submitted by employers, unless they are 
applying for the excepted occupations. For non-excepted occupations 
employers will no longer have to submit an application form (ETA 750, 
Application for Permanent Employment Certification) to the DOL; nor 
will these employers have to submit any recruitment information to the 
DOL before their petition can be adjudicated by DHS. Employers, 
however, will be required to maintain and make available for review all 
documentation supporting their attestations.

X. Catalogue of Federal Domestic Assistance Number

    This program is listed in the Catalogue of Federal Domestic 
Assistance at Number 17.203, ``Certification for Alien Workers.''

List of Subjects in 20 CFR Part 655

    Administrative practice and procedure, Agriculture, Aliens, 
Crewmembers, Employment, Forest and forest products, Health 
professions, Employment and training, Enforcement, Fraud, Guam, 
Immigration, Labor, Longshore work, Migrant labor, Penalties, Reporting 
requirements, Unemployment, Students, Wages and working conditions.

    Accordingly, we propose that part 655 of Chapter V of title 20 of 
the Code of Federal Regulations be amended as follows:

PART 655--TEMPORARY EMPLOYMENT OF ALIENS IN THE UNITED STATES

    1. The authority citation for part 655 continues to read as 
follows:

    Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(H)(i) 
and (ii), 1182(m), (n) and (t), 1184, 1188, and 1288(c) and (d); 29 
U.S.C. 49 et seq.; sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 
2102 (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 
4978, 5027 (8 U.S.C. 1184 note); Title IV, Pub. L. 105-277, 112 
Stat. 2681; and 8 CFR 213.2(h)(4)(i).
    Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 1184, 
and 1188; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).
    Subparts A and C issued under 8 U.S.C. 1101(a)(15)(H)(ii)(b) and 
1184; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(5)(i).
    Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184, and 
1188; and 29 U.S.C. 49 et seq.
    Subparts D and E issued under 8 U.S.C. 1101(a)(15)(H)(i)(a), 
1182(m), and 1184; 29 U.S.C. 49 et seq.; and sec. 3(c)(1), Pub. L. 
101-238, 103 Stat. 2099, 2103 (8 U.S.C. 1182 note).
    Subparts F and G issued under 8 U.S.C. 1184 and 1288(c); and 29 
U.S.C. 49 et seq.
    Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and 
(b1), 1182(n), 1182(t) and 1184; 29 U.S.C. 49 et seq.; sec 
303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1182 
note); and Title IV, Pub. L. 105-277, 112 Stat. 2681.
    Subparts J and K issued under 29 U.S.C. 49 et seq.; and sec 
221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note).
    Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(1)(c), 
1182(m), and 1184, 29 U.S.C. 49 et seq., Pub. L. 106-95, 113 Stat. 
1312.

    2. Part 655, subpart A, is revised to read as follows:
Subpart A--Post-Adjudication Audits of H-2B Petitions in All 
Occupations Other Than Excepted Occupations in the United States
Sec.
655.1 What is the purpose and scope of subpart A?
655.2 Which Federal agencies are involved in the H-2B program?
665.3 What are the excepted occupations?
655.4 What is the requirement regarding record retention?
655.5 What is the attestation regarding wages?
655.6 What is the attestation regarding working conditions?
655.7 What is the attestation regarding strikes and lockouts?
655.8 What is the attestation regarding the recruitment of U.S. 
workers?
655.9 What is the attestation regarding compliance with Federal, 
state and local laws?
655.10 What is the attestation regarding notification to the DHS on 
termination of employment of H-2B workers?
655.11 What may the DOL audit?
655.12 What are employer responsibilities during the audit?
655.13 What actions may the DOL take as a result of the audit?

[[Page 3996]]

Subpart A--Post-Adjudication Audits of H-2B Petitions in All 
Occupations Other Than Excepted Occupations in the United States


Sec.  655.1  What is the purpose and scope of subpart A?

    This subpart contains the attestations that will be required for 
employers to file H-2B petitions with the Department of Homeland 
Security (DHS). This subpart also sets forth the procedures governing 
the Department of Labor's (DOL or ETA) post-adjudication audit process 
for H-2B attestations in occupations other than logging, entertainment, 
or professional athletics. In addition, it describes the process by 
which the DOL, after notice to the employer and providing an 
opportunity for a hearing, may make a finding that an employer be 
debarred for a period of up to three years if the employer fails to 
comply with the terms of attestations contained in its H-2B petition or 
misrepresented a material fact. Once such a finding has been issued, 
the DOL will notify the DHS of this determination.


Sec.  655.2  Which Federal agencies are involved in the H-2B program?

    Three Federal agencies (Department of Labor, Department of Homeland 
Security, and Department of State) are involved in the process relating 
to H-2B employment in the United States. Employers seeking to import H-
2B workers, with the exception of workers in logging, the entertainment 
industry, or professional athletics, will only file a petition with the 
DHS. That petition will require, among other evidence, attestations 
concerning the employer's labor market tests and related issues.


Sec.  655.3  What are the excepted occupations?

    Certain occupations are not subject to the attestation requirements 
in Sec. Sec.  655.5 through 655.10:
    (a) Employers seeking to employ workers in logging shall follow the 
procedures set forth in subpart C of this part.
    (b) Employers seeking to employ professional athletes as defined in 
section 212(a)(5)(A)(iii)(II) of the Immigration and Nationality Act 
shall continue to file directly with the Chief, Division of Foreign 
Labor Certification, Employment and Training Administration, U.S. 
Department of Labor, and pursuant to policy guidelines.
    (c) Employers seeking to employ workers in the entertainment 
industry shall continue to file pursuant to ETA policy guidelines.


Sec.  655.4  What is the requirement regarding record retention?

    The employer shall maintain all supporting documentation for its 
attestations for a period of three years from the date of filing. This 
documentation shall include resumes received and the written results of 
all recruitment efforts undertaken, as well as any other information 
noted in this regulation required to support the attestations.


Sec.  655.5  What is the attestation regarding wages?

    An employer seeking to employ H-2B workers shall attest that, for 
the entire period of authorized employment, H-2B workers will be paid 
at least the prevailing wage for the occupation in the area of intended 
employment.
    (a) Determining the prevailing wage. The prevailing wage shall be 
determined by the Occupational Employment Statistics (OES) survey (if 
any) for the occupation in the area of intended employment. An employer 
shall obtain the prevailing wage through the DOL's On-Line Wage Library 
(OWL), a web-based service which can be accessed via the DOL's Web site 
at https://www.flcdatacenter.com/owl.asp. The data on this site are 
drawn from the wage component of the OES survey, conducted by the 
Bureau of Labor Statistics.
    (b) Minimum wage laws. A prevailing wage determination for H-2B 
purposes made under this section shall not permit an employer to pay a 
wage lower than that required under any other applicable Federal, state 
or local law.
    (c) Wage ranges. Where the employer pays a range of wages to 
individuals in an occupational classification or among individuals with 
similar experience and qualifications for the specific employment in 
question, a range is considered to meet the prevailing wage requirement 
so long as the bottom of the wage range is at least the prevailing wage 
rate.


Sec.  655.6  What is the attestation regarding working conditions?

    An employer seeking to employ H-2B workers shall attest that it is 
offering working conditions normal to workers similarly employed in the 
area of intended employment.


Sec.  655.7  What is the attestation regarding strikes and lockouts?

    An employer seeking to employ H-2B workers shall attest that there 
is not, at the time the attestation is filed, a strike, lockout, or 
work stoppage in the course of a labor dispute in the occupational 
classification in the place of employment.


Sec.  655.8  What is the attestation regarding the recruitment of U.S. 
workers?

    (a) Recruitment attestation. An employer seeking to employ H-2B 
workers shall attest that it conducted the required recruitment prior 
to filing the attestation and was unsuccessful in locating qualified 
U.S. applicants for the job opportunity for which certification is 
sought and has rejected U.S. workers only for lawful job-related 
reasons.
    (b) Required recruiting efforts. Within 60 days, but no less than 
20 days, prior to filing the attestation the employer must:
    (1) Place a job order with America's Job Bank (AJB),
    (2) Contact the appropriate union(s), if unions are customarily 
used as a recruitment source in the area or industry, and
    (3) Place a Sunday advertisement in a newspaper of general 
circulation or an advertisement in an appropriate trade journal and in 
the area of intended employment.
    (c) Contents of advertisement. The text of the advertisement shall:
    (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 
U.S. workers of the job opportunity for which certification is sought;
    (4) Describe the geographic area with enough specificity to apprise 
applicants of any travel requirements and where applicants will likely 
have to reside to perform the job opportunity;
    (5) State the rate of pay which must equal or exceed the prevailing 
wage for the occupation in the area of intended employment; and
    (6) Offer wages, terms, and conditions of employment which are no 
less favorable than those offered to the alien.
    (d) Recruitment results. The employer shall maintain written 
results of its recruitment which:
    (1) Identify each recruitment source by name;
    (2) State the name, address, and telephone number of each U.S. 
worker who applied for the job;
    (3) Include applicant resumes, if submitted to the employer; and
    (4) Explain the lawful job-related reasons for not hiring each U.S. 
worker.


Sec.  655.9  What is the attestation regarding compliance with Federal, 
state and local laws?

    An employer seeking to employ H-2B workers shall attest that, 
during the period of employment, it will comply with all Federal, state 
or local laws applicable to the employment opportunity.

[[Page 3997]]

Sec.  655.10  What is the attestation regarding notification to the DHS 
on termination of employment of H-2B workers?

    An employer seeking to employ H-2B workers shall attest that, upon 
the termination of employment of H-2B worker(s) employed under the 
attestation, the employer will notify the DHS in writing of the 
termination of employment within 30 days.


Sec.  655.11  What may the DOL audit?

    Upon final adjudication from the DHS, the DOL will conduct audits 
of attestations contained in certain approved H-2B petitions. 
Specifically, the DOL will audit a sample of approved attestations. 
Audited attestations will be identified through a process of pre-
selection and/or randomly drawn samples. The DOL will limit its 
examination to whether the employer has complied with labor market 
tests and other related elements of the attestations.


Sec.  655.12  What are employer responsibilities during the audit?

    Employers should retain all documentation supporting their 
attestations, and are required to provide this supporting documentation 
to the DOL within 30 days from notice of audit. The DOL may request 
employers to provide supplemental information as necessary to complete 
the audit. Failure to cooperate with the audit process, including 
providing documentation within the specified time period, may result in 
a finding that the employer be debarred for a period of up to three 
years.


Sec.  655.13  What actions may the DOL take as a result of the audit?

    (a) The Chief, Division of Foreign Labor Certification or his/her 
designee, will notify the employer of the finding that the employer is 
to be debarred for a period of up to three years if the employer:
    (1) Has misrepresented a material fact or has made a fraudulent 
statement in its attestations,
    (2) Has failed to comply with the terms of the attestations 
contained in its petition, or
    (3) Failed to cooperate in the audit process pursuant to Sec.  
655.12.
    (b) The notice in paragraph (a) of this section shall be in 
writing, shall state the reason for the debarment finding, and shall 
offer the employer an opportunity to request review before an 
Administrative Law Judge. The notice shall state that in order to 
obtain such a review or hearing, the employer, within 30 calendar days 
of the date of the notice, shall file a written request to the Office 
of Administrative Law Judges, 800 K Street, NW., Suite 400, Washington, 
DC 20001-8002, and simultaneously serve a copy to the Chief, Division 
of Foreign Labor Certification or his/her designee. If such a review is 
requested, the hearing shall be conducted pursuant to the procedures 
set forth in 29 CFR part 18.
    (c) Whenever an employer has requested an administrative review 
before an Administrative Law Judge of a debarment finding, the Chief, 
Division of Foreign Labor Certification or his/her designee, shall 
immediately assemble an indexed Appeal File. The Chief, Division of 
Foreign Labor Certification or his/her designee, shall send a copy of 
the Appeal File to the Office of Administrative Law Judges. The 
Administrative Law Judge shall affirm, reverse, or modify the Chief, 
Division of Foreign Labor Certification's determination, and the 
Administrative Law Judge's decision shall be provided to the employer, 
the Chief, Division of Foreign Labor Certification, and the DHS. The 
Administrative Law Judge's decision shall be the final decision of the 
DOL, unless appealed to the Administrative Review Board within 30 days.
    (d) After completion of the appeal process, the DOL will inform the 
DHS of the findings, as appropriate, for debarment.

    Signed in Washington, DC, this 18th day of January, 2005.
Emily Stover DeRocco,
Assistant Secretary, Employment and Training Administration.
[FR Doc. 05-1222 Filed 1-26-05; 8:45 am]
BILLING CODE 4510-30-P