UNITED STATES DEPARTMENT OF LABOR
BOARD OF ALIEN LABOR CERTIFICATION APPEALS
Judges' Benchbook
Second Edition - May 1992


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CHAPTER 13 Divisions IV to VII

GOOD FAITH EFFORTS TO RECRUIT

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TABLE OF CONTENTS

IV. Manner of contact

V. Interview requirement and travel expenses

VI. Later attempts to contact applicants

VII. Alien involvement in interview

IV. Manner of contact

A. Employer's contact of applicants

1. Elements of recruitment report

In Yaron Development Co., Inc. , 89-INA-178 (Apr. 19, 1991) ( en banc ), the Board stated what elements are needed in a recruitment report to establish proper attempts to contact U.S. applicants. In general, the report must indicate what attempts the employer made to contact the applicants, and include details such as:

  • when or how many times it attempted to contact the applicants by phone;

  • whether the attempted contacts were to the applicants' place or business or home;

  • with whom a message was left, if any, and what the message was;

  • whether the employer attempted alternative means of communication, such as a letter.

See also Chapter 23 (Rejection of U.S. Workers).

2. Contact of former employer

In Relief Printing Company , 89-INA-346 (Jan. 23, 1991), it was held that the employer's unsuccessful attempt to contact an applicant's previous employer by telephone was an insufficient attempt to investigate the applicant's credentials, as the employer could have tried to contact the previous employer by letter or could have contacted the applicant himself.

3. Contact of family member

Contacting an applicant by speaking to the applicant's spouse on the phone, and being told by the spouse that the applicant is not interested in the job, is not a reasonable effort to contact the U.S. applicant. Such third-party communication is not sufficient, as the employer did not prove that it made any contact with the applicant. Dove Homes, Inc. , 87-INA-680 (May 25, 1988) ( en banc ). See also British Body Craft , 88-INA-439 (June 6, 1989) (employer's rebuttal acknowledged the possibility that another applicant expressed lack of interest or someone in the applicant's household stated disinterest in the position).

4. Call to only one of several telephone numbers provided

An employer's attempts to call the applicant at the home number only, when the employer also had the applicant's work number and the home and work addresses, does not constitute a reasonable effort to contact the applicant. Further, the subsequent determination that the applicant was not at that number does not cure the initial poor effort. Bruce A. Fjeld , 88-INA-333 (May 26, 1989) ( en banc ). Similarly, two attempts to call one of the numbers provided by the applicant (and leaving a message), when the applicant also provided another phone number and her home and work address, is insufficient as an attempt to contact the applicant. Bay Area Women's Resource Center , 88-INA-379 (May 26, 1989) ( en banc ). See also Yaron Development Co., Inc. , 89-INA-178 (Apr. 19, 1991) ( en banc ) discussed supra Division IV, A, 1.

In Alliance Welding and Steel Fabricating, Inc. , 90-INA-57 (Dec. 17, 1990), the panel held that an employer's attempt to call the applicant during office hours at the applicant's home number, when the employer also had the applicant's home address and work address, was not a reasonable effort to contact the applicant. The employer was on notice that the applicant might not be reached at his home during office hours, as his resume showed that he was currently employed.

5. Failure to attempt to obtain correct address or telephone number

In Relief Printing Company , 89-INA-346 (Jan. 23, 1991), the employer unsuccessfully attempted nine times to telephone an applicant's former employer to verify his experience. The CO, however, was able to contact the employer simply by calling directory assistance to obtain a new telephone number. In affirming the denial of certification, the panel held, inter alia , that "At the least, the Employer could have called directory assistance, as did the CO, and gotten the correct phone number."

In Bucks Bit Service , 89-INA-140 (Jan. 3, 1990), an allegation that the employer did not know the applicants' addresses was found to be insufficient where the employer could have obtained the addresses from the state job service.

6. Confusion over location or date of interview

Confusion created by the employer as to where the interviews are to take place, and interviewing applicants at the wrong locations, indicates a lack of good faith in the recruiting effort. Suniland Music Shoppes , 88-INA-93 (Mar. 20, 1989) ( en banc ).

The Board remanded a case where the employer and the applicant were both mistaken as to the date of interviews, as a result of the employer's contact with the applicant. Bolton Electric , 88-INA-192 (Dec. 22, 1988) ( en banc ).

Where the employer offered unclear statements as to whether it had contacted applicants, and did not adequately explain how mistakes concerning the location of possible interviews were caused or resolved, the panel held that the employer failed to document its good faith efforts to recruit U.S. workers. Joshua Klein Refrigeration , 89-INA-194 (Dec. 11, 1990).

In Dr. Ina S. Wallen , 90-INA-223 (Dec. 20, 1991), the panel found that the employer improperly discouraged a U.S. applicant's interview for a housekeeping position. Evidence showed that the applicant appeared at the designated place for the interview and that she waited several hours for the employer before leaving. The panel found that, without supporting documentation, the employer's explanation that she was appearing for trial or deposition at the scheduled time was unpersuasive.

7. Obligation to try alternative means of contact

Reasonable efforts to contact qualified U.S. applicants may, in some circumstances, require more than a single type of attempted contact. Diana Mock , 88-INA-255 (Apr. 9, 1990). For example:

  • In Diana Mock , 88-INA-255 (Apr. 9, 1990), the panel held that where there were only two applicants, and they both provided their phone number, a reasonable effort to contact should have included phoning rather than just mailing a letter, especially when there was confusion over one of the mailing addresses.

  • In Any Phototype, Inc. , 90-INA-63 (May 22, 1991), the panel held that an employer who does no more than making unanswered phone calls or leaving a message on an answering machine has not made a reasonable effort to contact the U.S. worker, where the addresses were available for applicants (the panel explained that a certified letter would have been a minimally acceptable additional effort).

  • In Sierra Canyon School , 90-INA-410 (Jan. 16, 1992), the panel held that the employer should have attempted to contact U.S. applicants for a maintenance worker job by telephone after none of them responded to its certified letter. Although certified mail may be a proper means for contacting U.S. applicants, a reasonable effort to contact applicants in this case was found to require more. The employer had the telephone numbers for eight of nine applicants for a position requiring no experience or training, and none of the applicants responded to the employer's certified letter.

See also Yaron Development Co., Inc. , 89-INA-178 (Apr. 19, 1991) ( en banc ); C'est Pzazzz Industries , 90-INA-260 (Dec. 5, 1991) (should have sent new letter, where first letter was mailed and returned in an envelope that was incorrectly addressed); S. Balian Designs , 89-INA-299 (Sept. 20, 1991) (should have attempted phone calls after alleged mailing); Gambino's Restaurant , 90-INA-320 (Sept. 17, 1991) (should have attempted mail promptly after phone calls were unsuccessful).

8. Discouragement of applicants

In its contact with the applicant, an employer should not discourage the applicant. Noh Mask and Unfolding Futon , 89-INA-144 (Feb. 7, 1990) (employer told applicant the position was not permanent and that the applicant would soon have to look for a new job).

In Sierra Canyon School , 90-INA-410 (Jan. 16, 1992), the panel held that the employer should have attempted to contact U.S. applicants for a maintenance worker job by telephone after none of them responded to its certified letter (which had required the applicants to complete applications after they had submitted resumes). In this case, the certified mail letter was viewed as an additional hurdle (completing the application). The employer had the telephone numbers for eight of nine applicants for a position requiring no experience or training, and none of the applicants responded to the employer's certified letter. The panel noted that the employer made no attempt to evaluate the applicants based on their resumes. See also Michael Alex , 90-INA-414 (Dec. 9, 1991) (contact letter required a reply with a completed application); Ander Trading, Inc. , 88-INA-356 (Dec. 22, 1988) (remand where rejected U.S. applicant alleged that employer offered her less than the advertised wage, but an ambiguity existed as to the source of the applicant's statement and the circumstances surrounded the alleged offer).

B. Applicant's contact of employer

1. Means of contacting employer

An employer must provide the applicants with an appropriate opportunity to respond to the employer's contact. Thus, where the only method provided of contacting the employer is through an answering machine, and where the applicants experienced difficulty in contacting the employer or receiving calls back from the messages, the employer did not make a reasonable effort to contact the applicants. James Ganley Builders , 88-INA-343 (July 28, 1989).

Where an employer failed to include its name or phone number on the contact telegrams, and misspelled the contact person's name, such a contact amounted to a lack of a good faith effort to recruit. Budget Iron Work , 88-INA-393 (Mar. 21, 1989). To the same effect, Michael Alex , 90-INA-414 (Dec. 9, 1991) (the employer forced applicants to respond by mail with applications for housekeeping position, but misstated the employer's name or phone number so that no phone inquiries could be made).

Under some circumstances, however, defects in a letter directing the applicant to contact the employer have been excused, such as where an alternative means of communication was provided,

  • Hoover Electric Co. , 88-INA-315 (June 6, 1989) (the absence of the employer's telephone number from the contact letter, by itself, is insufficient to show a lack of good faith, where the employer did provide its name, address and a contact person and set forth the job title (distinguishing Budget Iron Work , supra )).

or where the employer established that the applicant was unavailable at the time of initial recruitment.

  • Bada Apparel , 87-INA-712 (Apr. 13, 1988) (one applicant could not respond back to the employer because of a miscommunication in the employer's contact letter).

2. Letter placing burden on applicants to contact employer

In Simon's Precision Machine , 88-INA-105 (July 31, 1989), it was held that a letter requesting that applicants call the employer if the applicants believed they had the required experience is permissible, where the applicants were given ample opportunity to respond. The employer may reject those who do not respond, since failure to respond indicates disinterest or inexperience. See also Light Fire Iron Works , 90-INA-2 (Nov. 20, 1990) (applicant had signed certified mail receipt, but never contacted employer).

3. Sufficiency of time to respond

An employer must give the applicants adequate time to respond to the employer's contact concerning interviews. Tempco Engineering, Inc. , 88-INA-101 (June 20, 1988) (three days from the date of the employer's letter was insufficient, and thus the applicants' failure to respond to the request for an interview was not a ground for rejecting the applicants); Michael Alex , 90-INA-414 (Dec. 9, 1991) (four days not sufficient time to respond with completed application for housekeeping position); Galletti Brothers Food , 90-INA-511 to 90-INA-516, 90-INA-531 to 90-INA-566 (Apr. 30, 1991) (certified letters received on March 9, 11, 17 and 19 afforded a wholly insufficient time to respond by March 11); Super K-Q 1540 A.M. , 90-INA-441 (Mar. 13, 1991).

C. Evidentiary matters

1. Burden of proof

The burden is on the employer to substantiate its assertion that it made contact promptly with potentially qualified U.S. applicants. Flamingo Electroplating, Inc. , 90-INA-495 (Dec. 23, 1991); Klausner Transportation Co. , 90-INA-46 (Apr. 29, 1991); Venk Jewelry , 89-INA-348 (July 30, 1990); Harvey Studios , 88-INA-430 (Oct. 25, 1989). The burden is on the employer to adequately document its attempts to contact U.S. applicants and explain why other methods were not used. OKO Corporation , 90-INA-196 (May 16, 1991).

On the other hand, the burden is on the CO to identify which apparently qualified applicants were allegedly not available because of the employer's late contact. Failure to identify the apparently qualified applicants prevents the employer the opportunity to rebut. See JB Trading House, Inc. , 88-INA-387 (Mar. 28, 1990).

2. Credibility and weight of evidence

a. Sufficiency of recruitment report

A recruitment report must describe the details of the employer's attempts at contact of applicants to be sufficient. See Yaron Development Co., Inc. , 89-INA-178 (Apr. 19, 1991) ( en banc ), described in more detail supra Division IV, A, 1.

Thus, an employer's recruitment report may be insufficient where it merely asserts that the applicant was unavailable without proving contact,

  • Annette Gibson , 88-INA-396 (June 20, 1989).

lacks detail regarding the effort at contact,

  • Venk Jewelry , 89-INA-348 (July 30, 1990) (did not detail dates or times of calls or offers to interview, or who made the calls).

  • Hopewell Co. , 89-INA-190 (May 23, 1990) (allegations of telephone contact are insufficient, with no support of who made the calls or what was said in the conversation).

  • Harvey Studios , 88-INA-430 (Oct. 30, 1989) (the employer only showed copies of a one-sentence memo allegedly sent to two applicants, and stated that it left a message on a third applicant's answering machine).

lacks documentation of the contact efforts,

  • Yaron Development Co., Inc. , 89-INA-178 (Apr. 19, 1991) ( en banc ) (report failed to indicate when or how many times the employer attempted to contact the applicant by telephone, whether the attempt was at work or home, what (if any) message was left, or whether alternative means of contact were attempted).

  • Carriage House Realtors , 87-INA-739 (Apr. 5, 1989) (the employer failed to produce "notes" it claimed to have made regarding phone calls to two applicants who stated they were not contacted).

is ambiguous,

  • Joshua Klein Refrigeration , 89-INA-194 (Dec. 11, 1990) (the employer offered unclear statements as to whether it had contacted applicants and did not explain how mistakes concerning the location of possible interviews were caused or resolved).

or contradicts the applicant's description of the contact.

  • K Super K-Q 1540 A.M. , 90-INA-441 (Mar. 13, 1991) (the employer stated that two U.S. applicants failed to appear for an interview and a third could not be contacted, but questionnaire responses by the three applicants revealed that the first two were interviewed and the third was contacted by the CO and responded thereto).

  • Venk Jewelry , 89-INA-348 (July 30, 1990) (U.S. applicant indicated he had not been contacted).

  • Robert B. Fry, Jr. , 89-INA-6 (Dec. 28, 1989) (applicants indicated they were not contacted).

For a discussion of the weighing of conflicting statements of applicants and employers, see infra Division IV, C, 2, b.

In contrast, with adequate explanation or documentation, an employer may show that it contacted, or made reasonable efforts to contact, U.S. applicants. For example, in the following cases the employer documented that it could not have contacted the applicant:

  • Drs. Patel and Karia , 88-INA-565 (Mar. 8, 1990) (state job service gave the employer incorrect address and phone number to contact applicant).

  • Ankitson Development Corp. , 88-INA-452 (Jan. 3, 1990) (the employer was given no address or number for one applicant).

  • Sizzler Restaurants International , 88-INA-123 (Jan. 9, 1989) ( en banc ) (evidence indicated that the applicant's phone was disconnected).

An employer's narrative account of its efforts to contact U.S. applicants carries some indicia of reliability. If the report discloses internal inconsistencies, or improbabilities, its truthfulness may be suspected; on the other hand, a natural coherence of details would give the account at least an appearance of truth. Cathay Carpet Mill, Inc. , 87-INA-161 (Dec. 7, 1988) ( en banc ).

The employer asserted that it contacted a U.S. worker by telephone and then by letter, a copy of which was in the record. The CO disregarded the employer's statements to argue that certified mail was the only means by which the employer could prove its contact with the U.S. applicant. A panel disagreed to state that "a C.O. is at liberty to contact that U.S. applicant whom he/she believes was never contacted by an Employer, and should not wantonly disregard the Employer's otherwise documented assertion to the contrary." Lotus Corp ., 91-INA-203 (July 28, 1992).

b. Conflicting accounts by the employer and U.S. applicants

Where an employer's statements concerning contact are contradictory and unsupported, the CO may properly give greater weight to applicants' statements that they were not contacted. Robert B. Fry, Jr. , 89-INA-6 (Dec. 28, 1989). However, determinative evidentiary weight is not automatically given to the applicants' statements that they were not contacted. Dove Homes, Inc. , 87-INA-680 (May 25, 1988) ( en banc ). For example, in the following cases the employer's documentation of its attempted contact was found to be more credible than the statements by U.S. applicants:

  • Yedico International, Inc. , 87-INA-740 (Sept. 30, 1988) ( en banc ) (where overwhelming contemporaneous evidence showed that employer had contacted applicants, the CO's denial based on two brief responses to questionnaires prepared five months after recruitment period was irrational).

  • Bayside Builders , 90-INA-290 (Jan. 7, 1992) (where the employer's evidence (certified mail receipts, a telephone log and narrative report) showed that efforts were made to contact the applicants, the panel found the employer's statements were entitled to more credibility than the applicants').

See also Chapter 11, V, D (Evidence) regarding the admissibility, authentication, burdens of proof and probative weight of questionnaire responses.

3. Failure to produce resumes of applicants

Where the CO does not challenge the employer's reasons for rejecting U.S. applicants, then the employer's failure to produce resumes of applicants it interviewed and rejected is not a basis for denying labor certification. Hollywood Tropicana , 90-INA-259 (Dec. 20, 1991).

4. Proof of service

An employer may prove that it contacted U.S. applicants by producing copies of certified mail, return receipt requested. Light Fire Iron Works , 90-INA-2 (Nov. 20, 1990), citing Bel Air Country Club , 88-INA-223 (Dec. 23, 1988).

A CO must consider an employer's signed statements regarding the mailing of a letter to a U.S. applicant, and may not deny certification solely on the ground that the employer failed to produce a post office stamp or money receipt for certified mail. Bel Air Country Club , 88-INA-223 (Dec. 23, 1988), citing Gencorp , 87-INA-659 (Jan. 13, 1988) ( en banc ).

V. Interview requirement and travel expenses

If an employer requires applicants to appear for a personal interview over a long distance, while refusing to pay travel expenses or make some other arrangements, the employer may be using the interview requirement as a means of rejecting U.S. applicants. Such a requirement indicates that there is a lack of good faith recruitment, prohibited under § 656.21(b)(7). The Board has addressed this issue in two en banc decisions.

In Lin and Associates, Inc. , 88-INA-7 (April 14, 1989) ( en banc ), while not deciding who must bear the burden of travel expenses, the Board held that the employer must take measures to reduce this burden, such as providing the opportunity to be interviewed over the phone. Since the employer made no such offer, the employer did not engage in good faith recruitment.

In Hipoint Development, Inc. , 88-INA-340 (May 31, 1989) ( en banc ), the employer rejected the U.S. applicants because they failed to appear for interviews at their own expense. As the employer failed to arrange other procedures to mitigate the hardship of traveling expenses (such as paying the expenses or arranging phone interviews), where the employer was required to conduct more than local recruitment, the employer's interview requirement indicated a lack of good faith recruitment.

Other decisions have found the interview requirement, without travel reimbursement or other methods of interviewing, to establish a lack of good faith recruiting:

  • Shameeza Embroideries, Inc. , 89-INA-366 (July 18, 1991) (an employer does not engage in good faith recruitment if it requires a personal interview but fails to attempt to reschedule the interview to a mutually agreeable time).

  • Vermillion Enterprises , 89-INA-43 (Nov. 20, 1989) (the employer also discouraged replies to its contact letter in manner in which U.S. applicants were advised of interviews).

  • Misak's General Building Contractors , 89-INA-39 (Oct. 25, 1989) (where position is professional, and recruitment is not limited to local applicants, the rejection is unlawful if the employer fails to offer to pay interview costs or arrange phone interviews).

  • Warmtex Enterprises , 88-INA-403 (June 28, 1989); Warmtex Enterprises v. Martin , 953 F.2d 1133 (9th Cir. 1992) (per curiam) (the Ninth Circuit affirmed the district court's summary judgment ruling against the employer; 20 C.F.R. § 656.24(b)(2) allows the Department of Labor to find the employer's recruitment insufficient because the employer rejected five apparently qualified applicants who would not or could not travel for a personal interview at their own expense).

  • L.A. United Investment Co. , 87-INA-738 (April 20, 1988) (employer told applicants that there were over 30 applicants, and thus it could not offer to pay interview expenses).

VI. Later attempts to contact applicants

A. Current unavailability of applicant

If an employer attempts to contact an applicant after the CO alleges that the applicant was not contacted or interviewed, or was rejected, the fact that the employer shows that the applicant is now unavailable does not cure the initial violation. Bruce A. Fjeld , 88-INA-333 (May 26, 1989) ( en banc ); Suniland Music Shoppes , 88-INA-93 (Mar. 20, 1989) ( en banc ); Custom Card , 88-INA-212 (Mar. 16, 1989) ( en banc ); Amritsar Academy , 88-INA-34 (Mar. 13, 1989) ( en banc ); O'Malley Glass & Millwork Co. , 88-INA-49 (Mar. 13, 1989) ( en banc ); Done-Rite, Inc. , 88-INA-341 (Mar. 2, 1989) ( en banc ); Dove Homes, Inc. , 87-INA-680 (May 25, 1988) ( en banc ); Linen Star, Inc. , 91-INA-316 (Oct. 2, 1991); Mike's Refrigeration , 90-INA-258 (July 30, 1991); A & E Clinical Veterinary Laboratory , 90-INA-28 (Jan. 2, 1991); Whitman, Requart & Associates Engineers , 89-INA-328 (Aug. 15, 1990); J. Howard & Associates, Inc. , 90-INA-208 (May 3, 1990); Minnesota House of Representatives Research Department , 89-INA-163 (Mar. 8, 1990); Shaw's Crab House , 89-INA-139 (Jan. 3, 1990); Ridglea Country Club , 88-INA-180 (Jan. 3, 1990); Huron Aviation , 88-INA-431 (July 27, 1989); Annette Gibson , 88-INA-396 (June 20, 1989); International Panstate Corp. , 88-INA-231 (June 8, 1989); Listrani's Restaurant , 88-INA-380 (June 8, 1989); Arcadia Enterprises, Inc. , 87-INA-692 (Feb. 29, 1988); Dresshappers Lingerie , 88-INA-6 (Feb. 23, 1988); ENY Textiles, Inc. , 87-INA-641 (Jan. 22, 1988).

Even an unaccepted offer of the job to the previously rejected applicant will not cure the violation. United Business Institute , 89-INA-82 (Dec. 13, 1989).

B. Lack of availability or qualification at the time of initial recruitment

Despite the general rule that an employer's showing that the applicant is now unavailable does not cure the initial violation, if the employer can adequately prove that the applicant (who was not contacted or who was rejected) was not available for the position at the time of initial recruitment , this may excuse the violation. Bada Apparel , 87-INA-712 (Apr. 13, 1988). Compare Custom Card , 88-INA-212 (Mar. 16, 1989) ( en banc ) (applicant found to have been available at the time of recruitment). See also Hennessey's Tavern, Inc. , 90-INA-437 (Mar. 13, 1991) (30-day delay, not excused because the employer alleged the applicant was not qualified, as the applicant's letter raised the reasonable possibility that he was qualified); Venk Jewelry , 89-INA-348 (July 30, 1990) (indicating that a lack of qualification might excuse lack of contact in certain circumstances; applicant, however, was qualified).

C. Delay unrelated to lawful rejection

In Yaron Development Co., Inc. , 89-INA-178 (Apr. 19, 1991) ( en banc ), the Board noted that, assuming arguendo that the employer's discovery after the FD that the applicant would not have taken the job if offered because it was allegedly "too far" away, the employer's argument came too late for the CO to consider. The Board further held that, even if the argument had been adequately raised before the CO, the employer failed to establish that distance was the sole reason that the applicant expressed disinterest when he was finally contacted.

In Ironclad, Inc ., 88-INA-477 (Feb. 12, 1990) (1-1-1 split decision), Judge Brenner indicated in a concurring decision that if the employer can show that its delay in contacting applicants played no part in the decision not to hire those applicants, he would not find that the delay in contacting the applicants was fatal to the application.

D. CO's request to contact U.S. applicants

1. Authority of CO to require contact or recontact

A CO may require an employer to contact or recontact seemingly qualified U.S. applicants. See , e.g. , Mr. and Mrs. Charles Shinn , 88-INA-16 (Feb. 16, 1989) ( en banc ); City Public Service , 89-INA-337 (Mar. 27, 1991).

2. NOF whose scope permits rejection based on information derived from later contact

If the CO's NOF instructs the employer to contact or recontact a U.S. applicant, and to state a lawful job-related ground for rejecting the applicant, but does not instruct the employer to state and document its reason for rejecting the applicant during the recruitment period, then the CO may not deny certification based on the employer's initial rejection. Mr. and Mrs. Charles Shinn , 88-INA-16 (Feb. 16, 1989) ( en banc ) (applicant's current unavailability was lawful job-related reason given the scope of the CO's NOF).

3. Requirement that employer be provided adequate time to document recontact

The CO must provide the employer with adequate time to provide documentation of a required recontact. For example, in City Public Service , 89-INA-337 (Mar. 27, 1991), where the employer had no control over when U.S. applicants would return certified mail receipts, a panel found the employer's request for an extension of time to submit signed certified mail receipts to be reasonable and the CO's denial of the extension to be an abuse of discretion. The CO had required, in the NOF, that the employer recontact three applicants. The employer responded in rebuttal with copies of the letters which were sent, and unsigned certified mail receipts. The employer explained that it would submit the signed receipts when the applicants returned them, but the CO had inappropriately found that the employer had not proven it had recontacted U.S. applicants.

4. Instruction not to contact

Where a CO instructs an employer not to interview a U.S. applicant, but merely to document that the applicant is not qualified, willing or available at the time of initial consideration and referral, it is improper to deny certification because the applicant was not interviewed. Prospect School , 88-INA-184 (Dec. 22, 1988) ( en banc ).

VII. Alien involvement in interview

Section 656.20(b)(3) provides that it is contrary to the best interests of U.S. workers to have the alien or agents or attorneys for the alien participate in interviewing or considering U.S. workers for the job offered. For a detailed discussion, see Chapter 3, II (Alien Ownership and Control).

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