The new system requires employers to conduct recruitment before filing their applications. Employers are required to place a job order and two Sunday newspaper advertisements. If the application is for aprofessional occupation, the employer must conduct three additional steps that the employer chooses from a list of alternative recruitment steps published in the regulation. The employer will not be required to submit any documentation with its application, but will be expected to maintain the supporting documentation specified in the regulations. The employer will be required to provide the supporting documentation in the event its application is selected for audit and as otherwise requested by a Certifying Officer.

    This final rule also provides employers with the option to submit their forms either electronically or by mail directly to an ETA application processing center. A number of commenters indicated they wanted the option of filing electronically. Since January 14, 2002, employers have been allowed to submit Labor Condition Applications (LCAs) electronically under the nonimmigrant H-1B program, which has been very successful. Similarly, we expect electronic filing of applications for permanent alien employment certification to be successful and to be used by the overwhelming majority of employers filing applications. Employers will receive more prompt adjudication of their applications than would have been the case under a system that permitted only submission of applications by facsimile transmission or by mail. The new form-- Application for Permanent Employment Certification (ETA Form 9089)--has been designed to be completed in a web-based environment and submitted electronically or to be completed by hand and submitted by mail.

    The preamble to the proposed rule indicated that, initially, if a processing fee was not implemented, employers would be allowed to submit applications by facsimile transmission or by mail. DOL, however, has decided employers will not be permitted to submit applications by facsimile. Our experience with facsimile transmission under the H-1B program has been considerably less than optimal. It should also be noted employers do not have such an option under the current regulations for the permanent labor certification program.

    To accommodate electronic filing, a complete application will consist of one form. The new form, ETA Form 9089, will contain additional ``blocks'' to be marked by the employer to acknowledge that the submission is being made electronically and that information contained in the application is true and correct. We have developed a customer-friendly Web site (http://www.workforcesecurity.doleta.gov/foreign/) that can be accessed by employers to electronically fill out and submit the form. The Web site includes detailed instructions, prompts, and checks to help employers fill out the form. The Web site also provides an option to permit employers that frequently file permanent applications to set up secure files within the ETA electronic filing system containing information common to any permanent application they file. Under this option, each time an employer files an ETA Form 9089, the information common to all of its applications, e.g., employer name, address, etc., will be entered automatically, and the employer will have to enter only the data specific to the application at hand.

    Electronic submission and certification requires ETA Form 9089 be printed out and signed by the employer immediately after DOL provides the certification. A copy of the signed form must be maintained in the employer's files, and the original signed form must be submitted to support the Immigrant Petition for Alien Worker (DHS Form I-140).

    Because we do not yet have the technology to satisfy the statutesthat deal with electronic signatures on Government applications--the Government Paperwork Elimination Act (44 U.S.C. 3504 n.) and/or the Electronic Records and Signatures in Global and National Commerce Act (E-SIGN) (15 U.S.C. 7001-- 7006)--we are not implementing either of these statutes in this final rule. In the event such technology becomes available in the future, we will modify the electronic process for filing and certifying applications for permanent alien employment to comply with these statutes, and will provide appropriate notice(s) and instructions to employers. We view it as inadvisable to delay the electronic filing and certifications system while we develop this additional technology. When the statutes that deal with electronic signatures are implemented, all electronic filings will require such signatures. We are, however, implementing use of a PIN/Password system in the interim.

    As indicated above, a complete application will consist of a single form: ETA Form 9089. The majority of the items on the application form consist of questions that require the employer to check Yes, No, or NA (not applicable) as a response. These questions and other information required by the application form elicit information similar to that required by the current labor certification process. For example, the wage offered on the application form must be equal to or greater than the prevailing wage determination provided by the SWA. The application form also requires the employer to describe the job and specific skills or other requirements.

    The employer will not be required to provide any supporting documentation with its application but must maintain and, when requested by the Certifying Officer, furnish documentation to support its answers, attestations and other information provided on the form.

The standards used in adjudicating applications under the new systemwill be substantially the same as those used in arriving at a determination in the current system. The determination will still be based on: whether the employer has met the procedural requirements of the regulations; whether there are insufficient U.S. workers who are able, willing, qualified and available; and whether the employment of the alien will have an adverse effect on the wages and working conditions of U.S. workers similarly employed.

    Many commenters were concerned about the potential for fraud, misrepresentation, and non- meritorious applications in an attestation- based system. Some, but not all, of the measures we have taken to minimize these problems, include: a review of applications, upon receipt, to verify the existence of the employer and to verify the employer has employees on its payroll, and the use of auditing techniques that can be adjusted as necessary to maintain program integrity. The concerns about fraud and the measures we will implement to address such concerns are discussed below in greater detail.

    SWAs will no longer be the intake point for receipt of applications for permanent alien employment certification and will not be required to be the source of recruitment and referral of U.S. workers as they are in the current system. The required role of SWAs in the redesigned permanent labor certification process will be limited to providing prevailing wage determinations (PWD). Employers will be required to obtain a PWD from the SWA before filing their applications with DOL.

The SWAs will, as they do under the current process, evaluate the particulars of the employer's job offer, such as the job duties and requirements for the position and the geographic area in which the job is located, to arrive at a PWD.

    The combination of pre-filing recruitment, providing employers with the option to complete applications in a web-based environment, automated processing of applications including those submitted by mail, and elimination of the SWA's required role in the recruitment process will yield a large reduction in the average time needed to process labor certification applications. The redesigned system should also eliminate the need to institute special resource- intensive efforts to reduce backlogs, which have been a recurring problem.

    After ETA's initial review of an application has determined that it is acceptable for processing, a computer system will review the application based upon various selection criteria that will allow problematic applications to be identified for audit. Additionally, as a quality control measure, some applications will be randomly selected for audit without regard to the results of the computer analysis. DOL has incorporated identifiers into the processing system, which are used to select cases for audit based upon program requirements. In some instances, DOL will be confirming specific information with employers.

    If an application has not been selected for audit, and satisfies all other reviews, the application will be certified and returned to the employer. The employer must immediately sign the application and then submit the certified application to DHS in support of an employment-based I-140 petition. We anticipate an electronically filed application not selected for audit will have a computer- generated decision within 45 to 60 days of the date the application was initially filed.

    If an application is selected for audit, the employer will be notified and required to submit, in a timely manner, documentation specified in the regulations to verify the information stated in or attested to on the application. Upon timely receipt of an employer's audit documentation, it will be reviewed by ETA personnel. If the employer does not submit a timely response to the audit letter, the application will be denied. If the audit documentation is complete and consistent with the employer's statements and attestations contained in the application, and not deficient in any material respect, the application will be certified the employer will be notified. If the audit documentation is incomplete, is inconsistent with the employer's statements and/or attestations contained in the application, or if the application is otherwise deficient in some material respect, the application will be denied and a notification of denial with the reasons therefore will be issued to the employer. However, on any application, the CO will have the authority to request additional information before making a final determination.

    The CO may also order supervised recruitment for the employer's job opportunity, such as where questions arise regarding the adequacy of the employer's test of the labor market. The supervised recruitment that may be required is similar to the current regulations for recruitment under basic processing, which requires placement of advertisements in conjunction with a 30-day job order by the employer. The recruitment, however, will be supervised by ETA COs instead of the SWAs. At the completion of the supervised recruitment effort, the employer will be required to document in a recruitment report the outcome of such effort, whether successful or not, and if unsuccessful, the lawful job- related reasons for not hiring any U.S. workers who applied for the position. Upon review of the employer's documentation, the CO will either certify or deny the application.

    In all instances in which an application is denied, the notification will set forth the deficiencies upon which the denial is based. The employer will be able to seek administrative-judicial review of a denial by the Board of Alien Labor Certification Appeals (BALCA).