Page:United States Statutes at Large Volume 104 Part 6.djvu/605

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PUBLIC LAW 101-649—NOV. 29, 1990 104 STAT. 4995 (3) The pilot program under this subsection shall only be effective for applications for certifications filed during the 3-fiscal-year period beginning with fiscal year 1992. (4) By not later than April 1, 1994, the Secretary of Labor shall Reports, report to the Committees on Education and Labor and Judiciary of the House of Representatives and the Committees on Labor and Human Resources and the Judiciary of the Senate on the operation of the pilot program under this subsection and whether the program should be extended and the number of defined occupational classifications permitted under the program if it is extended. (b) NOTICE IN LABOR CERTIFICATIONS.— The Secretary of Labor shall provide, in the labor certification process under section 212(a)(5)(A) of the Immigration and Nationsdity Act, that— (1) no certification may be made unless the applicant for certification has, at the time of filing the application, provided notice of the filing (A) to the bargaining representative (if any) of the employer's employees in the occupational classification and area for which aliens are sought, or (B) if there is no such bargaining representative, to employees employed at the facility through posting in conspicuous locations; and (2) any person may submit documentary evidence bearing on the application for certification (such as information on available workers, information on wages and working conditions, and information on the employer's failure to meet terms and conditions with respect to the employment of alien workers and co-workers). SEC. 123. DEFINITIONS OF MANAGERIAL CAPACITY AND EXECUTIVE CAPACITY. Section 101(a) (8 U.S.C. 1101(a)) is amended by adding at the end the following: "(44XA) The term 'managerial capacity' means an assignment within an organization in which the employee primarily— "(i) msuiages the organization, or a department, subdivision, function, or component of the organization; "(ii) supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization; "(iii) if another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and "(iv) exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised are professional. "(B) The term executive capacity' means an assignment within an organization in which the employee primarily— "(i) directs the management of the organization or a major component or function of the organization; "(ii) establishes the goals and policies of the organization, component, or function;