THE LABOR CERTIFICATION RECRUITMENT PROCESS
by Michael J. Gurfinkel, Esq.
One of the most crucial stages of
Labor Certification is the recruitment process. The recruitment
process can literally "make or break" your case. If
not handled properly, your Labor Certificate case could be denied.
The purpose of the recruitment process
is to satisfy the U.S. Department of Labor's requirement that
there are no qualified U.S. workers available for the particular
job opening.
What are the Steps the Employer
Has to Take for Recruiting?
There is a three-step process
for recruitment: (1) a job order is placed in the state employment
agency's job bank by the Employment Development Department; (2)
the job opening is posted by the employer at the place of business
for ten consecutive days; and (3) an ad is placed
in a newspaper designated by the state employment agency for three
consecutive days. The employer is not named in the ad. Instead,
U.S. applicants are instructed to send their resumes to a Post
Office Box in care of the applicable state employment agency.
-- The ad to be placed in the newspaper
must be prepared with great care. The ad must specify the specific
job requirements, wage to be paid, any special requirements, and
job/interview site. The attorney handling your case should assist
or handle the preparation of this ad, to make sure it is properly
worded, thereby greatly increasing the chances for the success
of your case.
When U.S. workers respond to the
ad (by mailing their resumes to the P.O. Box set forth in the
ad), the state employment agency gathers the resumes received,
and forwards them to the employer or the attorney. The employer
must then contact and interview these U.S. applicants, to determine
if they meet the minimum qualifications for the job, as specified
in the labor certification application. The employer should contact
U.S. workers within 14 days of receipt of the resume from the
state employment agency, or the case could be denied because of
"late contacts."
-- It is only from these U.S. applicants
who responded to the 3-day ad (in addition to those who respond
to the job order and job posting) that the employer determines
whether there are qualified U.S. workers. For example, if the
job position is for an accountant, and only five U.S. accountants
respond to the ad, it is only those five applicants that the employer
must consider, even if there are potentially hundreds or thousands
of out-of-work and/or qualified accountants in the job market.
By regulation, the alien who is
being sponsored, as well as the alien's attorney, are not
allowed to participate in this interview process. If the
Department of Labor determines that the alien or the alien's attorney
were involved in the interview process, the labor certification
application will be denied. (Many times an employer tells
the alien to interview U.S. applicants. However, this could be
fatal to your case.)
How Does The Employer Contact
Qualified Applicants?
After responses or resumes are received,
the employer is required to contact the U.S. workers who appear
to meet the minimum qualifications for the job, as specified in
the Labor Certification Application. This is typically done by
telephone and/or by letter. If there is any unreasonable delay
in contacting U.S. applicants (i.e. more than 14 days from the
employer's receipt of resumes from the state employment agency),
the Labor Certification Application could be denied.
The initial contact with the U.S.
applicants must be closely and carefully documented to ensure
timely contact is made, and proof of such contact is available
for submission to the state employment agency. I know of many
cases that were denied because the employer did not follow the
procedures for recruitment. There are specific requirements, steps,
and procedures the employer must follow, which the attorney should
instruct the employer.
What Are Some of the Grounds
for Rejecting U.S. Workers?
The employer must consider and interview
U.S. workers whose resumes show them to be potentially qualified
for the job position. The employer may reject U.S. workers only
for lawful, job-related reasons. There are several lawful, job-related
reasons for rejecting U.S. workers. These include:
1. The U.S. applicants' failure
to meet the minimum requirements stated on the Labor Certification
Application. (This is why the Labor Certification Application
must be properly worded, to make sure all appropriate requirements
are stated.)
2. The U.S. applicants' failure
to pass a performance test. (So long as such tests are specified
as a requirement in the Labor Certification Application, and the
alien being petitioned in the Labor Certification process took
the test, and had passed that performance test.)
3. The U.S. applicant's failure
to document his or her experience (i.e. exaggerated their credentials
on their resume).
4. Poor or unverifiable job references
(i.e. previous employer gives them a poor recommendation).
5. U.S. applicant does not have
current knowledge or expertise in the job field.
6. U.S. applicant's failure to respond
to the employer's letter.
7. U.S. applicant is not interested
in the job or the wage. (Please note that if the applicant's resume
specifies a higher wage than that being offered, the U.S. applicant
must still be offered the wage specified on the Labor Certification
Application, and be given the opportunity to reject or refuse
to accept that wage.)
8. Failure to attend a scheduled
interview.
What Are Some Impermissible
Reasons for Rejecting U.S. Workers?
While U.S. applicants can be rejected
for lawful, job related reasons, they cannot be rejected
at the whim or fancy of the employer. Some unlawful or impermissible
grounds for rejecting U.S. workers include:
1. Rejecting U.S. workers based
on requirements not stated in the Labor Certification Application.
2. U.S. applicant is over-qualified.
For example, if the job offer requires only a Bachelor's Degree
and the U.S. applicant has a Master's Degree, the U.S. applicant
must still be considered.
3. The employer's mere suspicion
that the job might not fit with the U.S. applicant's long-term
career goals, and/or that the job is merely a stepping stone to
other employment. If an applicant is to be rejected because he
or she is not interested in the position, this must be fully
documented.
4. The alien is more qualified than
the U.S. applicant. (So long as the U.S. applicant meets the employer's
minimum requirements, the U.S. applicant cannot be lawfully
rejected simply because the alien is more qualified.)
5. Diverting qualified U.S. applicants
to other job positions, in order to enable the employer
to hire the alien for the position being offered.
6. Employer's suspicion that
the U.S. worker is "unreliable", because he or she has
a history of moving from job to job, would have commuting problems,
was not "trustworthy", had a "bad attitude",
and the like. If the employer has these suspicions, they would
have to be fully documented (i.e. through discussions with previous
employers, etc.).
As you can see, the recruitment
process is very detailed, with many steps and strict requirements
to be met. Many cases fail because the recruitment process was
not handled properly. That is why you should make sure that the
attorney handling your case works closely with your employer,
so the employer handles the recruitment process properly to avoid
delay or even denial of your Labor Certification case.
What Happens After the Recruitment
Period?
Upon completion of the recruitment
process (which typically is 45 days), the employer details
his or her recruitment efforts of U.S. workers in writing, and
specifies the lawful, job related reasons for rejecting each of
those applicants.
- It is very important that the
employer make detailed notes and records of the recruitment efforts,
(especially the times and dates of interviews, and the reasons
for rejecting U.S. applicants) in case the Department of Labor
has any questions in connection with the recruitment process.
- The Department of Labor has a
goal of sending questionnaires to 100% of the U.S. job applicants,
to determine their version of the job interview, to compare
their version with that of the employer, as detailed in the recruitment
report. That is why it is important that the employer fully document
the recruitment efforts, such as date(s) of contact, and outcome
of the interview. If the employer's version of events conflict
with the version given by the U.S. worker, the Department of Labor
will give greater weight to the U.S. worker's version.
The recruitment report, along with
other documentation, such as resumes, etc. are then sent to the
State employment agency, which forwards them to the Department
of Labor. If the Department of Labor is satisfied, it "certifies"
the job, by placing a multi-colored stamp on the application.
With this labor certification approval stamp, the employer would
file a petition with the INS on behalf of the alien, for the green
card.
If the Department of Labor believes
that one or more of the U.S. workers was fully qualified for the
job, or if the Department of Labor has any other questions, or
concerns about the information on the Labor Certification Application,
or the recruitment process, it will send a document called "Notice
of Findings" asking for clarification or explanations
on various points. (A Notice of Findings will not be discussed
in this article.)
As you can see, the recruitment
process is very detailed, with many steps and strict requirements.
Many cases fail because the recruitment process was not handled
properly. That is why it is important that you seek the assistance
of a reputable attorney who can properly instruct the employee
and the employer through this very difficult process.
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