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Notes

20 C.F.R. §§ 655.420–655.422

3 sections in range

§655.420. Application filing requirements.

20 C.F.R. § 655.420

An employer seeking to hire CW-1 workers must electronically file a CW-1 Application for Temporary Employment Certification with the NPC designated by the OFLC Administrator. This section provides the procedures an employer must follow when filing.
(a)
What to file. An employer seeking a TLC must file a completed CW-1 Application for Temporary Employment Certification (Form ETA-9142C and the appropriate appendices and valid PWD), and all supporting documentation and information required at the time of filing under this subpart. Applications that are incomplete at the time of submission will be returned to the employer without review.
(b)
Timeliness.
(1)
Except as provided in paragraph (b)(2) of this section, a completed CW-1 Application for Temporary Employment Certification must be filed no more than 120 calendar days before the employer's date of need.
(2)
If the employer is seeking a TLC to extend the employment of a CW-1 worker, a completed CW-1 Application for Temporary Employment Certification must be filed no more than 180 calendar days before the date on which the CW-1 status expires.
(c)
Location and methods of filing—
(1)
Electronic filing. The employer must file the CW-1 Application for Temporary Employment Certification and all required supporting documentation with the NPC using the electronic method(s) designated by the OFLC Administrator. The NPC will return, without review, any application submitted using a method other than the designated electronic method(s), unless the employer submits with the application a statement of the need to file by mail or indicates that it already submitted such a statement to NPWC during the same fiscal year.
(2)
Filing by mail. Employers that are unable to file electronically, either due to lack of internet access or physical disability precluding electronic filing, may file the application by mail. The mailed application must include a statement indicating the need to file by mail as indicated above. The NPC will return, without review, mailed applications that do not contain such a statement. OFLC will publish the address for mailed applications in the instructions to Form ETA-9142C.
(d)
Original signature and acceptance of electronic signatures. An electronically filed CW-1 Application for Temporary Employment Certification must contain an electronic (scanned) copy of the original signature of the employer (and that of the employer's authorized attorney or agent, if the employer is represented by an attorney or agent) or, in the alternative, use a verifiable electronic signature method, as directed by the OFLC Administrator. If submitted by mail, the CW-1 Application for Temporary Employment Certification must bear the original signature of the employer and, if applicable, the employer's authorized attorney or agent.
(e)
Requests for multiple positions. An employer may request certification of more than one position on its CW-1 Application for Temporary Employment Certification as long as all CW-1 workers will perform the same services or labor under the same terms and conditions, in the same occupation, during the same period of employment, and at a location (or locations) covered by the application.
(f)
Scope of application.
(1)
A CW-1 Application for Temporary Employment Certification must be limited to places of employment within the Commonwealth.
(2)
In a single application filing, an association or other organization of employers is not permitted to file a CW-1 Application for Temporary Employment Certification on behalf of more than one employer-member under the CW-1 program.
(g)
Period of employment.
(1)
Except as provided in paragraph (g)(2) of this section, the period of need identified in the CW-1 Application for Temporary Employment Certification must not exceed 1 year.
(2)
If the employer is seeking TLC to employ a long-term CW-1 worker, the period of need identified in the CW-1 Application for Temporary Employment Certification must not exceed 3 years.
(h)
Return of applications based on USCIS CW-1 cap notice.
(1)
Except as provided in paragraph (h)(3) of this section, if USCIS issues a public notice stating that it has received a sufficient number of CW-1 petitions to meet the statutory numerical limit on the total number of foreign nationals who may be issued a CW-1 permit or otherwise granted CW-1 status for the fiscal year, the OFLC Administrator must return without review any CW-1 Applications for Temporary Employment Certification with dates of need in that fiscal year received on or after the date that the OFLC Administrator provides the notice in paragraph (h)(2) of this section.
(2)
The OFLC Administrator will announce the return of future CW-1 Applications for Temporary Employment Certification with dates of need in the fiscal year for which the cap is met with a notice on the OFLC's website. This notice will be effective on the date of its publication on the OFLC's website and will remain valid for the fiscal year unless:
(i)
USCIS issues a public notice stating additional CW-1 permits are available for the fiscal year; and
(ii)
The OFLC Administrator publishes a new notice announcing that additional TLCs may be granted in the fiscal year.
(3)
After the notice that OFLC will return future CW-1 Applications for Temporary Employment Certification, the OFLC Administrator will continue to process CW-1 Applications for Temporary Employment Certification filed before the effective date of the suspension notice and will continue to permit the filing of CW-1 Applications for Temporary Employment Certification by employers who identify in the CW-1 Application for Temporary Employment Certification that the employment of all CW-1 workers employed under the CW-1 Application for Temporary Employment Certification will be exempt from the statutory numerical limit on the total number of foreign nationals who may be issued a CW-1 permit or otherwise granted CW-1 status.
Notes, amendments, and revision history

Source

Source: 84 FR 12431, Apr. 1, 2019, unless otherwise noted.

Authority

Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C. 1103(a)(6), 1182(m), (n), and (t), 1184(c), (g), and (j), 1188, and 1288(c) and (d); 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); sec. 303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206, 107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8 U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat. 2135, as amended; Pub. L. 109-423, 120 Stat. 2900; 8 CFR 214.2(h)(4)(i); 8 CFR 214.2(h)(6)(iii); and sec. 6, Pub. L. 115-218, 132 Stat. 1547 (48 U.S.C. 1806). Subpart A issued under 8 CFR 214.2(h). Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188; and 8 CFR 214.2(h). Subpart E issued under 48 U.S.C. 1806. Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec. 323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note, Pub. L. 114-74 at section 701. Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and (b)(1), 1182(n), and (t), and 1184(g) and (j); sec. 303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e), Pub. L. 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461 note, Pub. L. 114-74 at section 701. Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and 1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).

Source

Source: 42 FR 45899, Sept. 13, 1977, unless otherwise noted.

§655.421. Job contractor filing requirements.

20 C.F.R. § 655.421

(a)
A job contractor may submit a CW-1 Application for Temporary Employment Certification on behalf of itself and that employer-client. By doing so, the Department deems the job contractor a joint employer.
(b)
A job contractor must have separate contracts with each different employer-client. A single contract or agreement may support only one CW-1 Application for Temporary Employment Certification for each employer-client job opportunity in the Commonwealth.
(c)
Either the job contractor or its employer-client may submit an Application for Prevailing Wage Determination describing the job opportunity to the NPWC. However, each of the joint employers is separately responsible for ensuring that the wage offer(s) listed in the CW-1 Application for Temporary Employment Certification and related recruitment at least equals the prevailing wage obtained from the NPWC, or the Federal or Commonwealth minimum wage, whichever is highest, and that all other wage obligations are met.
(d)
(1)
A job contractor that is filing as a joint employer with its employer-client must submit to the NPC a completed CW-1 Application for Temporary Employment Certification that clearly identifies the joint employers (the job contractor and its employer-client) and the employment relationship (including the places of employment), in accordance with instructions provided by the OFLC Administrator. The CW-1 Application for Temporary Employment Certification must bear the original signature of the job contractor and the employer-client or use a verifiable electronic signature method, consistent with the requirements set forth at § 655.420(d), and be accompanied by the contract or agreement establishing the employers' relationships related to the workers sought.
(2)
By signing the CW-1 Application for Temporary Employment Certification, each employer independently attests to the conditions of employment required of an employer participating in the CW-1 program and assumes full responsibility for the accuracy of the representations made in the application and for all of the responsibilities of an employer in the CW-1 program.
(e)
(1)
Either the job contractor or its employer-client may place the required advertisements and conduct recruitment as described in §§ 655.442 through 655.445. Also, either one of the joint employers may assume responsibility for interviewing applicants. However, both of the joint employers must sign the recruitment report that is submitted to the NPC meeting the requirement set forth in § 655.446.
(2)
All recruitment conducted by the joint employers must satisfy the job offer assurance and advertising content requirements identified in § 655.441. Additionally, in order to fully inform applicants of the job opportunity and avoid potential confusion inherent in a job opportunity involving two employers, joint employer recruitment must clearly identify both employers (the job contractor and its employer-client) by name and must clearly identify the place(s) of employment where workers will perform labor or services.
(3)
(i)
Provided that all of the employer-clients' job opportunities are in the same occupation located in the Commonwealth and have the same requirements and terms and conditions of employment, including dates of employment, a job contractor may combine more than one of its joint employer employer-clients' job opportunities in a single advertisement. Each advertisement must fully inform potential workers of the job opportunity available with each employer-client and otherwise satisfy the job offer assurances and advertising content requirements identified in § 655.441. Such a shared advertisement must clearly identify the job contractor by name, the joint employment relationship, and the number of workers sought for each job opportunity, identified by employer-client names and locations (e.g., five openings with Employer-Client A (place of employment location), three openings with Employer-Client B (place of employment location)).
(ii)
In addition, the advertisement must contain the following statement: “Applicants may apply for any or all of the jobs listed. When applying, please identify the job(s) (by company and work location) you are applying to for the entire period of employment specified.” If an applicant fails to identify one or more specific work location(s), that applicant is presumed to have applied to all work locations listed in the advertisement.
(f)
If a TLC for the joint employers is granted, the Final Determination certifying the CW-1 Application for Temporary Employment Certification will be sent to both the job contractor and employer-client.
Notes, amendments, and revision history

Source

Source: 84 FR 12431, Apr. 1, 2019, unless otherwise noted.

Authority

Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C. 1103(a)(6), 1182(m), (n), and (t), 1184(c), (g), and (j), 1188, and 1288(c) and (d); 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); sec. 303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206, 107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8 U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat. 2135, as amended; Pub. L. 109-423, 120 Stat. 2900; 8 CFR 214.2(h)(4)(i); 8 CFR 214.2(h)(6)(iii); and sec. 6, Pub. L. 115-218, 132 Stat. 1547 (48 U.S.C. 1806). Subpart A issued under 8 CFR 214.2(h). Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188; and 8 CFR 214.2(h). Subpart E issued under 48 U.S.C. 1806. Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec. 323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note, Pub. L. 114-74 at section 701. Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and (b)(1), 1182(n), and (t), and 1184(g) and (j); sec. 303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e), Pub. L. 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461 note, Pub. L. 114-74 at section 701. Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and 1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).

Source

Source: 42 FR 45899, Sept. 13, 1977, unless otherwise noted.

§655.422. Emergency situations.

20 C.F.R. § 655.422

(a)
Waiver of PWD requirement prior to application filing. The CO may waive the requirement to obtain a PWD, as required under § 655.410(c), prior to filing a CW-1 Application for Temporary Employment Certification for employers that have good and substantial cause, provided that the CO has sufficient time to thoroughly test the labor market and to make a final determination as required by § 655.450. The requirement to obtain a PWD prior to filing the CW-1 Application for Temporary Employment Certification, under § 655.410(c), is the only provision of this subpart which will be waived under these emergency situation procedures.
(b)
Employer requirements. The employer requesting a waiver of the requirement to obtain a PWD must submit to the NPC a completed Application for Prevailing Wage Determination, a completed CW-1 Application for Temporary Employment Certification, and a statement justifying the waiver request. The employer's waiver request must include detailed information describing the good and substantial cause that has necessitated the waiver request. Good and substantial cause may include, but is not limited to, the substantial loss of U.S. workers due to an Act of God, or similar unforeseeable man-made catastrophic events (such as a hazardous materials emergency or government-controlled flooding), unforeseeable changes in market conditions, pandemic health issues, or similar conditions that are wholly outside of the employer's control. Issues related to the CW-1 visa cap are not good and substantial cause for a waiver of the filing requirements. Further, a denial of a previously submitted CW-1 Application for Temporary Employment Certification or CW-1 petition with USCIS does not constitute good and substantial cause necessitating a waiver under this section.
(c)
Processing of emergency applications. The CO will process the emergency CW-1 Application for Temporary Employment Certification, including the Application for Prevailing Wage Determination for the CW-1 Program, in a manner consistent with the provisions of this subpart and make a determination in accordance with § 655.450. The CO will notify the employer, if the application cannot be processed because, pursuant to paragraph (a) of this section, the request for emergency filing was not justified and/or the filing does not meet the requirements set forth in this subpart.
Notes, amendments, and revision history

Source

Source: 84 FR 12431, Apr. 1, 2019, unless otherwise noted.

Authority

Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C. 1103(a)(6), 1182(m), (n), and (t), 1184(c), (g), and (j), 1188, and 1288(c) and (d); 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); sec. 303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206, 107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8 U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat. 2135, as amended; Pub. L. 109-423, 120 Stat. 2900; 8 CFR 214.2(h)(4)(i); 8 CFR 214.2(h)(6)(iii); and sec. 6, Pub. L. 115-218, 132 Stat. 1547 (48 U.S.C. 1806). Subpart A issued under 8 CFR 214.2(h). Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188; and 8 CFR 214.2(h). Subpart E issued under 48 U.S.C. 1806. Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec. 323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note, Pub. L. 114-74 at section 701. Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and (b)(1), 1182(n), and (t), and 1184(g) and (j); sec. 303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e), Pub. L. 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461 note, Pub. L. 114-74 at section 701. Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and 1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).

Source

Source: 42 FR 45899, Sept. 13, 1977, unless otherwise noted.