UNITED STATES DEPARTMENT OF LABOR
BOARD OF ALIEN LABOR CERTIFICATION
APPEALS
Judges' Benchbook
Second Edition - May 1992
CHAPTER 15
LOCAL EMPLOYMENT SERVICE
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TABLE OF CONTENTS
I. Statements or actions by local employment service
-
A.
Binding effect
-
B.
Discretion of CO to take into
consideration local employment service's bad advice
-
C.
Requirement that CO consider rebuttal
argument that employer was mislead by local employment
service
I. Statements or actions by local employment service
The CO is not bound by any statements or actions by the local employment service in his or her review of the application.
-
Peking Gourmet
, 88-INA-323 (May 11, 1989)
(argument rejected that the employer had properly refused to
readvertise in a different publication as directed by the CO
since it had advertised in a publication as advised by the
local employment service).
-
Aeronautical Marketing Corp.
, 88-INA-143 (Aug.
4, 1988) (CO not bound by the local employment service's
finding that the wage offer was within regulatory
guidelines).
- See also Chapter 18, IV, D (Prevailing Wage) in regard to the impact of a local employment service's prevailing wage determination on the CO's review of the application.
Thus, an employer's reliance on erroneous information supplied by the local employment service does not estop the CO from denying certification.
- Inner City Drywall Corp. , 90-INA-192 (June 24, 1991) (CO not estopped from denying the binding effect of an initial recruitment which was advertised at an erroneously low prevailing wage and which netted no applicants).
oreover, an employer's technical compliance with the regulations and blamelessness in the local employment service's erroneous instructions does not compel the granting of labor certification where the error can be corrected.
- See Bob's Exxon , 89-INA-259 (May 2, 1991) (where the local employment service had forwarded only three of forty applications, the CO was not bound to grant a waiver from Schedule B because of the employer's technical compliance with the regulations and apparent blamelessness in the inadequate referral; the CO correctly found that an adequate test of the labor market had not been achieved and correctly afforded the employer the opportunity to repost the job with the state agency).
Where the CO in effect notified the state employment office to direct employer to undertake a new recruitment, and employer does this as directed but no U.S. applicants apply, the CO cannot at that point "change his mind after the employer is induced to abandon its disagreement with the CO in order to attempt to promptly obtain certification by engaging in a new recruitment effort." Here the CO maintained that the new recruitment advised by the state agency had no binding effect on its own determination. Prima Royale Enterprises, Ltd. , 92-INA-262 (Sept. 20, 1993).
Whether the state agency should have allowed employer to advertise at the lower wage where the CO ultimately determined that rate below the prevailing rate is not determinative since even if the local job service authorized the employer's advertisement and accepted its wage offer, such a determination is not binding on the CO. Ann Richman, 93-INA-13 (March 21, 1994).
B. Discretion of CO to take into consideration local employment service's bad advice
Although a CO is not bound by the actions or statements of a local employment service, when evaluating an application he or she may take into account misleading information provided by a local employment service. Thus, where the local employment service's advice injects the employer's application with a fatal defect, a CO has the discretion to permit the employer to correct that defect. Sverdrup Technology, Inc. , 88-INA-310 (Mar. 27, 1990); see also Bob's Exxon , 89-INA-259 (May 2, 1991) (CO afforded the employer the opportunity to repost the job with the state agency because local employment service had forwarded only three of forty applicants).
A CO errs when he or she fails to consider a rebuttal argument that the employer was misled by the local employment service. Sverdrup Technology, Inc. , 88-INA-310 (Mar. 27, 1990) (the CO must consider the argument, and while not bound by the employment service's statements or actions, has the discretion to permit the employer to correct the error).
- In Sverdrup the local employment service recommended that the employer move its "special requirement" of experience with advanced metallurgy techniques from item 14 of the ETA 750 and make it a job duty under item 13. This left only a requirement of a Ph.D in Metallurgical Engineering on the ETA 750A, and the CO, apparently not knowing this background, found that the employer's rejection of applicants who had that degree but not the experience was unlawful. The CO failed in the FD to address the employer's rebuttal argument concerning its being misled by the local employment service. The panel remanded the case for the CO to consider the argument.
oreover, the CO may be required to provide a reasonable explanation for the departure from the local employment service's finding.
- See Peking Gourmet , 88-INA-323 (May 11, 1989) (CO could require further recruitment beyond the advice by the local employment service, provided, however, that the CO offers the employer a reasonable explanation of why its recruitment was inadequate and how additional recruitment would be appropriate); as to the CO's authority to direct further recruitment efforts, see Chapter 22, III, F, 2 (Recruitment Efforts).