Notice2021-24813
Update to Appendix A to the Preamble-Education and Training Categories by O*NET-SOC Occupations; Labor Certification for Permanent Employment of Immigrants in the United States and Procedures To Establish Job Zone Values When O*NET Job Zone Data Are Unavailable
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Published
November 15, 2021
Effective
November 15, 2021
Issuing agencies
Labor DepartmentEmployment and Training Administration
Abstract
The Employment and Training Administration (ETA) of the Department of Labor (Department) is issuing this notice to announce updates to Appendix A to the Preamble-Education and Training Categories by Occupational Information Network (O*NET)-Standard Occupational Classification (SOC) Occupations. Appendix A is a list of professional occupations that serves as a guide for employers to distinguish between professional and non-professional occupations in order to comply with the professional recruitment requirements of the permanent labor certification (PERM) program. In addition, this notice announces standard procedures for establishing Job Zones for a SOC code and occupational title in situations where O*NET Job Zone data are not yet available as O*NET transitions to the 2018 SOC system. These actions, updating Appendix A and establishing standard procedures for Job Zone values where O*NET Job Zone data are unavailable for certain occupations, will allow ETA to maintain a more comprehensive and current list of occupations and provide additional clarity to employers and the public regarding the appropriate education requirements and Job Zone value for each SOC code and occupational title.
Full Text
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<title>Federal Register, Volume 86 Issue 217 (Monday, November 15, 2021)</title>
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[Federal Register Volume 86, Number 217 (Monday, November 15, 2021)]
[Notices]
[Pages 63070-63073]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-24813]
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DEPARTMENT OF LABOR
Employment and Training Administration
Update to Appendix A to the Preamble--Education and Training
Categories by O*NET--SOC Occupations; Labor Certification for Permanent
Employment of Immigrants in the United States and Procedures To
Establish Job Zone Values When O*NET Job Zone Data Are Unavailable
AGENCY: Employment and Training Administration, Department of Labor.
ACTION: Notice.
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SUMMARY: The Employment and Training Administration (ETA) of the
Department of Labor (Department) is issuing this notice to announce
updates to Appendix A to the Preamble-Education and Training Categories
by Occupational Information Network (O*NET)-Standard Occupational
Classification (SOC) Occupations. Appendix A is a list of professional
occupations that serves as a guide for employers to distinguish between
professional and non-professional occupations in order to comply with
the professional recruitment requirements of the permanent labor
certification (PERM) program. In addition, this notice announces
standard procedures for establishing Job Zones for a SOC code and
occupational title in situations where O*NET Job Zone data are not yet
available as O*NET transitions to the 2018 SOC system. These actions,
updating Appendix A and establishing standard procedures for Job Zone
values where O*NET Job Zone data are unavailable for certain
occupations, will allow ETA to maintain a more comprehensive and
current list of occupations and provide additional clarity to employers
and the public regarding the appropriate education requirements and Job
Zone value for each SOC code and occupational title.
DATES: This Notice is effective on November 15, 2021.
FOR FURTHER INFORMATION CONTACT: Brian Pasternak, Administrator, Office
of Foreign Labor Certification, Employment and Training Administration,
Department of Labor, 200 Constitution Avenue NW, Room N-5311,
Washington, DC 20210, Telephone: (202) 693-8200 (this is not a toll-
free number). Individuals with hearing or speech impairments may access
the telephone number above via TTY/TDD by calling the toll-free Federal
Information Relay Service at 1 (877) 889-5627.
SUPPLEMENTARY INFORMATION:
I. Statutory Background
The Immigration and Nationality Act (INA), as amended, assigns
responsibilities to the Secretary of Labor (Secretary) relating to the
entry and employment of certain categories of immigrants and
nonimmigrants. The INA prohibits the admission of certain employment-
based immigrants unless the Secretary has certified that (1) there are
not sufficient workers who are able, willing, qualified and available
at the time of application for a visa and admission to the United
States and at
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the place where the foreign worker is to perform such skilled or
unskilled labor, and (2) the employment of such foreign worker will not
adversely affect the wages and working conditions of workers in the
United States similarly employed.\1\ The Secretary has delegated the
responsibilities under the INA to administer the PERM program at 20 CFR
part 656 to the Assistant Secretary for ETA, who in turn has delegated
that authority to OFLC.\2\
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\1\ See 8 U.S.C. 1182(a)(5)(A); 8 U.S.C. 1101(a)(15)(E)(iii),
(H)(i)(b), (H)(i)(b)(1).
\2\ See Secretary's Order 06-2010 (Oct. 20, 2010).
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II. Appendix A
A. Origin and Purpose of Appendix A
On December 27, 2004, the Department published the Final Rule,
Labor Certification for the Permanent Employment of Aliens in the
United States; Implementation of New System, 69 FR 77326 (December 27,
2004) (Final Rule), revising the regulations at 20 CFR part 656. The
Final Rule requires employers to conduct recruitment of U.S. workers
before filing their applications under the PERM program and introduced
different recruitment requirements for non-professional occupations and
professional occupations.\3\ In the preamble to the Final Rule, the
Department included an appendix titled Appendix A, which listed O*NET
occupations using BLS 2000 SOC codes and titles for which a bachelor's
or higher degree is a customary requirement, and for which the employer
must recruit under the standards for professional occupations under 20
CFR 656.17(e)(1). The Department explained that the list was intended
to identify professional occupations the Department considered
appropriate for recruiting under the standards for professional
occupations and offered the list as a guide for employers to determine
recruitment requirements.\4\
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\3\ The term ``professional occupation'' is defined as ``an
occupation for which the attainment of a bachelor's or higher degree
is a usual education requirement.'' 20 CFR 656.3 (emphasis added).
As explained in the Final Rule, and codified at 20 CFR 656.3, it is
not a requirement that the foreign worker-beneficiary listed on an
application possess a bachelor's or higher degree themselves for the
job opportunity to meet the definition of a professional occupation.
Id.; 69 FR 77326, 77345-46 (Dec. 27, 2004). However, if an employer
is willing to accept work experience in lieu of a bachelor's or
higher degree, such work experience ``must be attainable in the U.S.
labor market and must be stated on the application form.'' 20 CFR
656.3. Similarly, if an equivalent foreign degree is acceptable,
this also ``must be clearly stated on the Application for Permanent
Employment Certification form.'' Id. In comparison, the term
``nonprofessional occupation'' means ``any occupation for which the
attainment of a bachelor's or higher degree is not a usual
requirement for the occupation.'' Id.; 69 FR 77326, 77345-46.
\4\ See 69 FR 77326, 77345-46 (``The primary purpose of the list
of occupations is to provide employers with the necessary
information to determine whether to recruit under the standards
provided in the regulations for professional occupations or for
nonprofessional occupations.'').
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The Department created Appendix A using a list of occupations that
BLS developed based on the usual education and training requirements
for the occupations.\5\ As the Department explained, each of the
occupations listed in Appendix A was assigned a BLS education and
training category (E&TC) code, which indicated the ``most significant
source of level of education or training'' required by an
occupation.\6\ In 2010, BLS ceased publishing the education
requirements for SOC codes under the E&TC system. However, BLS now
publishes the typical entry-level educational requirements for SOC
codes in conjunction with the annual wage estimates based on the
Occupational Employment and Wage Statistics (OEWS) wage survey.\7\
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\5\ See Notice of Proposed Rulemaking, Labor Certification for
the Permanent Employment of Aliens in the United States;
Implementation of New System, 67 FR 30466, 30471 (May 6, 2002).
\6\ See id.; Comment Request, 75 FR 60139, 60140 (Sept. 29,
2010). See also Employment Projections through the Lens of Education
and Training, 15, Monthly Labor Review: April 2012, Bureau of Labor
Statistics (explaining the reasons for development of the current
education and training system and the differences between the old
and new systems), available at <a href="https://www.bls.gov/opub/mlr/2012/article/employment-projections-through-the-lens-of-education-and-training.htm">https://www.bls.gov/opub/mlr/2012/article/employment-projections-through-the-lens-of-education-and-training.htm</a>; Employment Projections: Methods, Bureau of Labor
Statistics (explaining that the current system ``replaced [the]
earlier system that was used between 1995 and 2008'' and the ``two
systems are not comparable''), available at <a href="https://www.bls.gov/emp/documentation/education/tech.htm">https://www.bls.gov/emp/documentation/education/tech.htm</a>.
\7\ BLS's OEWS survey was named the Occupational Employment
Statistics survey prior to March 31, 2021. See <a href="https://www.bls.gov/oes/home.htm">https://www.bls.gov/oes/home.htm</a>.
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B. Use of Appendix A
OFLC processes the PERM labor certification application, Form ETA-
9089, Application for Permanent Employment Certification,\8\ and uses
Appendix A to determine whether the SOC code assigned to the requested
job opportunity \9\ in the application generally requires a bachelor's
degree for entry, such that the employer must conduct professional
recruitment under 20 CFR 656.17(e)(1).\10\ The absence of an occupation
from Appendix A is not dispositive of an employer's recruitment
obligations. However, if the occupation is not listed in Appendix A, as
updated and posted annually as notice(s) on the OFLC website, and it
does not otherwise meet the definition of a professional occupation
under 20 CFR 656.3, the employer is not required to conduct
professional recruitment.\11\
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\8\ The current form title is ETA Form 9089, but the Department
recently submitted proposed changes to the form to the Office of
Management and Budget (OMB) for review and approval in accordance
with the Paperwork Reduction Act. See Agency Information Collection
Activities; Submission for OMB Review; Comment Request; Application
for Permanent Employment Certification, 86 FR 22714 (Apr. 29, 2021).
\9\ Generally, the SOC code assigned to an employer's job
opportunity is indicated in the Prevailing Wage Determination issued
by OFLC's National Prevailing Wage Center.
\10\ OFLC's National Prevailing Wage Center (NPWC) also consults
the list of occupations in Appendix A to determine the education and
experience norms for occupations when it processes prevailing wage
determination requests, Form ETA-9141, Application for Prevailing
Wage Determination. Specifically, NPWC uses the E&TC codes on the
list of occupations in its determination of prevailing wages by
comparing an employer's education requirement listed on the Form
ETA-9141 with the education requirement indicated on the E&TC code
for that occupation. Employment and Training Administration;
Prevailing Wage Determination Policy Guidance, Nonagricultural
Programs (Revised Nov. 2009), available at <a href="https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf">https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf</a>.
\11\ See 20 CFR 656.17(e)(2) (recruitment obligations for
nonprofessional occupations); 69 FR 77326, 77388 (listing
definitions of ``professional occupation'' and ``nonprofessional
occupation'').
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C. Availability of New Education Data and the Department's Decision To
Update Appendix A
ETA believes it is necessary to publish this notice to provide the
best available information to guide employers in determining
recruitment requirements under the PERM program, especially as the list
of occupations in Appendix A has become outdated. For example, an
increasing number of occupational codes are no longer listed by the
same SOC code and occupational title in Appendix A due to updates to
the SOC manual in 2010 and 2018.\12\ Accordingly, it had become
necessary for OFLC to develop a method to crosswalk occupations (i.e.,
connecting an outdated occupation to the O*NET database to find an
occupation that best matches the job opportunity indicated in the
employer's application). However, with the BLS publication of the
typical entry-level educational requirement in conjunction with its
annual OEWS wage estimates for the SOC codes and titles, ETA is now
able to provide notice of corresponding updates to Appendix A, which
are based on occupational and education data from BLS, and maintain a
more current list of professional occupations that provides greater
clarity to the public on the appropriate education
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requirements for each occupation.\13\ ETA intends to annually review
the BLS occupational and education data with the annual OEWS wage
estimates each May and, as appropriate, publish a full update to
Appendix A consistent with the BLS data, even if BLS data have not
changed from the previous year.
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\12\ See, e.g., Standard Occupational Classification Manual
(2018), available at <a href="https://www.bls.gov/soc/2018/soc_2018_manual.pdf">https://www.bls.gov/soc/2018/soc_2018_manual.pdf</a>.
\13\ See <a href="https://www.bls.gov/oes/additional.htm">https://www.bls.gov/oes/additional.htm</a>.
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D. Effective Date of the Updated List of Occupations in Appendix A
The updated list of occupations in Appendix A will be published on
OFLC's website on or before June 30, 2022, along with the wage data
applicable in the new wage year, which starts July 1, 2022 and
continues until June 30, 2023. Employers will be able to rely on the
list of occupations and the education requirements associated with the
occupations in Appendix A that OFLC publishes each year on its website.
In order to minimize the impact of newly-added professional occupations
and to ensure appropriate notice for employers, including those engaged
in any pre-filing recruitment under 20 CFR 656.17(e), professional
recruitment obligations under 20 CFR 656.17(e)(1) will generally not
apply to professional occupations that are newly added to the list of
professional occupations in Appendix A unless OFLC has both: (1)
Published the occupation on a list of professional occupations as a
notice on the OFLC website; and (2) OFLC's National Prevailing Wage
Center (NPWC) has assigned the SOC code in connection with the issuance
of a prevailing wage determination under 20 CFR 656.40. As the
Department explained in the Final Rule, ``[t]he primary purpose of the
list of occupations [in Appendix A] is to provide employers with the
necessary information to determine whether to recruit under the
standards provided in the regulations for professional occupations or
for nonprofessional occupations.'' 69 FR 77326, 77346. However,
``[e]mployers that conduct more recruitment than is required will not
have their applications denied for that reason. Employers filing
applications involving nonprofessional occupations are free to recruit
under the requirements for professional occupations if they believe by
so doing it will yield more applications from willing, able, and
qualified U.S. workers.'' Id. Accordingly, ETA believes that providing
this notice to annually review and publish a new list of professional
occupations in Appendix A on OFLC's website--even when BLS data have
not changed from the previous year--will provide employers with the
best available information to guide them in determining recruitment
requirements and wage obligations. Specifically, OFLC will use BLS's
latest occupational and education data annually, beginning in the July
2022 through June 2023 wage year, when the wages are updated based upon
the same BLS release cycle.
III. Job Zones
A. O*NET Five Job Zones
A Job Zone is a group of occupations that are similar in the amount
of (1) education; (2) related experience; and (3) on-the-job training
that is needed to perform the work. O*NET classifies occupations into
one of five Job Zones, ranging from little or no preparation to an
extensive amount of preparation needed to perform the job. Job Zone One
occupations require little or no preparation to perform the job. Job
Zone Two occupations require some preparation. Job Zone Three
occupations require medium preparation. Job Zone Four occupations
require considerable preparation, and Job Zone Five occupations require
extensive preparation to perform the job.\14\
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\14\ See O*NET OnLine Help: Job Zones, available at https://
<a href="http://www.onetonline.org/help/online/zones">www.onetonline.org/help/online/zones</a>.
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More specifically, Job Zone One occupations may require: (1) A high
school diploma or GED certificate; (2) minimal work-related skill,
knowledge, or experience; and (3) a few days to a few months of job
training. Examples of Job Zone One occupations include: Dishwashers,
sewing machine operators, and landscaping and groundskeeping workers.
Job Zone Two occupations usually require: (1) A high school diploma;
(2) some previous work-related skill, knowledge, or experience; and (3)
a few months to one year of working. Examples of Job Zone Two
occupations include: Counter and rental clerks, customer service
representatives, and security guards. Job Zone Three occupations
usually require: (1) Training in vocational schools, related on-the-job
experience, or an associate's degree; (2) previous work-related skill,
knowledge, or experience; and (3) one or two years of training
involving both on-the-job experience and informal training. These
occupations usually involve using communication and organizational
skills to coordinate, supervise, manage, or train others. Examples of
Job Zone Three occupations include: Electricians, court reporters, and
medical assistants. Job Zone Four occupations usually require: (1) A
four-year bachelor's degree; (2) considerable amount of work-related
skill, knowledge, or experience; and (3) several years of work-related
experience, on-the-job training, and/or vocational training. These
occupations involve coordinating, supervising, managing, or training
others. Examples of Job Zone Four occupations include: Sales managers,
database administrators, and graphic designers. Job Zone Five
occupations usually require: (1) Graduate school; (2) extensive skill,
knowledge, and five or more years of experience; and (3) some on-the-
job training, but most of these occupations assume that the person will
already have the required skills, knowledge, work-related experience,
and/or training. These occupations often involve coordinating,
training, supervising, or managing the activities of others. Examples
of Job Zone Five occupations include: Pharmacists, lawyers, and
neurologists.\15\
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\15\ Id.
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B. Procedures for Establishing Job-Zone Values
OFLC uses the O*NET Job Zone assigned to an occupation to determine
whether the experience the employer requires meets, exceeds, or falls
below requirements typical to the occupation in which the employer's
job opportunity is classified. While O*NET transitions to the 2018 SOC
occupations, there are many frequently used occupations where the O*NET
Job Zone is not yet available. Until O*NET completes its transition,
OFLC will use the following standard procedures to set Job Zone values
for occupations without O*NET Job Zone data.
First, when there is an existing O*NET Job Zone for a 2018 SOC
occupation, OFLC will use the Job Zone from the O*NET 2018 SOC
occupation.
Second, when there is no O*NET Job Zone for the 2018 SOC
occupation, but there is an O*NET Job Zone for the 2010 SOC occupation,
OFLC will use the Job Zone from the O*NET 2010 SOC occupation.
Third, when there is no O*NET Job Zone for either the 2018 SOC
occupation or the 2010 SOC occupation, OFLC will first examine the
corresponding broad occupation \16\ to
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determine if the broad occupation contains detailed occupations with
O*NET Job Zones.\17\ OFLC will calculate the Job Zones by averaging the
O*NET Job Zones of the detailed occupations within the broad
occupation. For example, since there is neither O*NET Job Zone for 2018
SOC 11-3013--Facilities Managers nor O*NET Job Zone for 2010 SOC 11-
3011--Administrative Services Manager, OFLC will use the average O*NET
Job Zones for the Broad Occupation 11-3010--Administrative Services and
Facilities Managers.
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\16\ SOC occupations are organized into a tiered system with
four levels of aggregation: (1) Major group; (2) minor group; (3)
broad occupation; and (4) detailed occupation. Each lower level of
detail identifies a more specific group of occupations. The 2018 SOC
contains 23 major groups, which are broken into 98 minor groups, 459
broad occupations, and 867 detailed occupations, of the latter of
which have the highest level of specification. The following is an
example of the four levels of aggregation: 29-0000 Healthcare
Practitioners and Technical Occupations (major group); 29-1000
Healthcare Diagnosing or Treating Practitioners (minor group); 29-
1020 Dentists (broad occupation); and 29-1022 Oral and Maxillofacial
Surgeons (detailed occupation). See Standard Occupational
Classification Manual (2018), available at <a href="https://www.bls.gov/soc/2018/soc_2018_manual.pdf">https://www.bls.gov/soc/2018/soc_2018_manual.pdf</a>; see also The O*NET SOC Taxonomy, available
at <a href="https://www.onetcenter.org/taxonomy.html">https://www.onetcenter.org/taxonomy.html</a> (providing additional
information on classification).
\17\ See Updating the O*NET[supreg]-SOC Taxonomy: Incorporating
the 2018 SOC Structure--Summary and implementation, at 6-7,
available at <a href="https://www.onetcenter.org/dl_files/Taxonomy2019_Summary.pdf">https://www.onetcenter.org/dl_files/Taxonomy2019_Summary.pdf</a>.
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Lastly, where there is no O*NET Job Zone for either the 2018 SOC
occupation or the 2010 SOC occupation, and the broad occupation does
not have detailed occupations with O*NET Job Zones, OFLC will calculate
the Job Zone by averaging the O*NET Job Zone of the detailed
occupations within the minor group. For example, since the Broad
Occupation 15-2051--Data Scientists does not have detailed occupations
with O*NET Job Zones, OFLC will use the average O*NET Job Zones for the
Minor Group 15-2000--Mathematical Science Occupations.
OFLC intends to use these standard procedures for occupations that
do not have O*NET Job Zone data beginning in the July 2022 through June
2023 wage year when the wages are updated based upon the same BLS
release cycle.
Angela Hanks,
Acting Assistant Secretary of the Employment and Training
Administration.
[FR Doc. 2021-24813 Filed 11-12-21; 8:45 am]
BILLING CODE 4510-FP-P
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