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


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CHAPTER 22

RECRUITMENT EFFORTS

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TABLE OF CONTENTS

I. Scope

II. Pre-filing recruitment

III. Post-filing recruitment

IV. Readvertisement and re-recruitment

I. Scope

This chapter discusses the regulations and decisions governing an employer's efforts to recruit applicants, both before and after an application for labor certification is filed. It also discusses re-recruitment and readvertisement.

For discussions an employer's attempts to contact and interview the applicants who respond to recruitment, see Chapter 13 (Good Faith Efforts to Recruit).

II. Pre-filing recruitment

A. Report of pre-filing recruitment

1. Regulatory requirements for pre-filing recruitment report

Except for special handling cases and Schedule A occu-pations, an employer who attempts to recruit U.S. workers prior to filing an application for certification must document its good faith efforts to recruit without success through the job service system or through other labor referral and recruitment sources normal to the occupation. Section 656.21(b)(1).

The employer's documentation must:

  • identify the sources used for recruitment;

  • state how many U.S. workers responded;

  • state how many interviews were conducted;

  • specify the lawful job-related reasons for not hiring each U.S. worker interviewed; and

  • specify the wages and working conditions offered.

§ 656.21(b)(1)(i).

If the employer advertised the job opportunity prior to filing the application for certification, the employer must include a copy of at least one such advertisement. § 656.21(b)(1)(ii).

2. Employer bears burden of documenting pre-filing recruitment efforts

Pursuant to § 656.21(b)(1), an employer bears the burden of documenting its pre-filing recruitment efforts. The burden does not shift to the CO or to the Board simply because an employer classifies itself as "reputable." Citibank of South Dakota , 88-INA-211 (Mar. 24, 1989) ( en banc ).

3. Inapplicability of pre-filing regulations to post-filing recruitment efforts

A CO should not cite an employer for violating § 656.21(b)(1) when all recruitment efforts commenced subse- quent to applying for labor certification. Section 656.21(b)(1) applies only to recruitment efforts commenced prior to applying for certification. H.C. LaMarche Enterprises, Inc. , 87-INA-607 (Oct. 27, 1988) ( en banc ).

4. Good faith requirement

Labor certification may be denied where an employer does not exhibit good faith in its pre-filing recruitment. For example, in Fulton County Department of Planning and Economic Development , 89-INA-286 (May 24, 1990), labor certification was denied where the employer failed to specify the lawful, job-related reasons for not hiring each U.S. worker who applied during pre-filing recruitment.

In an earlier case, the Board reserved judgment on whether defective pre-filing recruitment may be a basis for denying certification. University of Oklahoma Health Sciences Center , 88-INA-158 (Dec. 29, 1988) ( en banc ) (pre-filing recruitment attracted qualified applicants who were not hired; case remanded because neither party adequately addressed employer's two separate recruitment efforts).

B. Request for reduction of post-filing recruitment requirements based on pre-filing recruitment efforts

An employer may rely on pre-filing recruitment efforts to support a request for a partial or complete reduction of post-filing recruitment efforts. To obtain a reduction, the employer must document that it has adequately tested the labor market with no success at least at the prevailing wage and working conditions. No reduction may be granted for occupations listed on Schedule B. Section 656.21(i).

The request for reduction must include documentary evidence that within the immediately preceeding six months the employer has made good faith efforts to recruit U.S. workers for the job opportunity, at least at the prevailing wage and working conditions, through sources normal to the occupation. § 656.21(i)(1)(i). The request must also include any other information which the employer believes will support the contention that further recruitment will be unsuccessful. § 656.21(i)(1)(ii).

III. Post-filing recruitment

A. Regulatory requirements for post-filing recruitment

1. Recruitment efforts must be documented

Except for job opportunities in private households, an employer must document that it has posted notices of the job opportunity at its place of business. § 656.21(b)(3).

All employers must document that any other efforts to locate and employ U.S. workers have been and continue to be unsuccessful. Such other means of recruitment include the use of private employment agencies, labor unions and advertisements; recruitment at trade schools, colleges and universities; and the development or promotion of present employees. § 656.21(b)(4).

2. Additional recruitment may be required

If appropriate to an occupation, an employer may be required to recruit through private employment agencies, labor unions, advertisements, trade schools, colleges and universities; or to develop or promote present employees. § 656.21(b)(4).

3. Role of local employment service

Section 656.21(f) authorizes the local employment service (a nationwide system of public employment offices funded by the U.S. employment service) to assist employers in recruiting U.S. workers. The recruitment period begins after an advertisement has been approved by the job service.

Specifically, the job service is authorized to:

  • (1) prepare and process an employment service order based on information in the 750A application;

  • (2) recruit U.S. workers for the job for a period of thirty days by placing the job order into the regular employment service recruitment system, if the job offer is acceptable;

  • (3) contact the employer with instructions on how to remedy a defect if the job offer is unacceptable; and

  • (4) if the defect is not cured, inform the employer that the job service is unable to recruit U.S. workers and that the application will be transmitted to a CO for a determination.

4. Recruitment through unions

If unions are customarily used as a recruitment source in the area or industry, the employer must document that the union is unable to refer U.S. workers. § 656.21(b)(5); Leo's Body Shop , 89-INA-255 (June 20, 1991) (certification denied where employer failed to provide documentation specifically requested by CO).

5. Positive recruitment at colleges and universities

Section 656.21(b)(4) lists recruitment at colleges and universities as one way an employer may attempt to locate and employ U.S. workers for a job opportunity. An employer may be required to show that it recruited at colleges and universities if it is appropriate for the occupation.

The CO's directions to the employer regarding recruitment at colleges and universities must be clear.

  • Where a CO directed an employer to document that it had asked colleges and universities to conduct "positive recruitment" for a position requiring only a degree, but did not respond to the employer's request for a definition of "positive recruitment," a panel remanded the case and instructed the CO to allow the employer to re-recruit. Toys "R" Us , 89-INA-345 (Dec. 10, 1990). See Chapter 17, II (Notice of Findings), regarding CO's obligation to give notice.

The CO may not deny certification on the ground that the employer failed to provide a written report of the results of its college and university recruitment, where such

efforts would not have yielded referrals prior to the time allowed for rebutttal. Al-Ghazali School , 88-INA-347 (May 31, 1989) ( en banc ); see also University of Miami , 90-INA-447 (Mar. 27, 1991).

B. Report of post-filing recruitment

1. Regulatory requirements

The employer must provide the local employment service office with a written report of the results of all the employer's post-filing recruitment efforts during the thirty-day recruitment period. For jobs advertised in publications other than newspapers, the report must be provided no less than thirty calendar days from the date of the publication of the employer's advertisement. § 656.21(j)(1).

The recruitment report must:

  • (1) identify each recruitment source by name;

  • (2) state the number of U.S. workers responding to the recruitment;

  • (3) state the names and addresses, and provide the resumes (if any) of the U.S. workers interviewed for the job opportunity, and state the job title of the person who interviewed each worker; and

  • (4) explain, with specificity, the lawful job-related reason for not hiring each U.S. worker interviewed.

§ 656.21(j)(1)(i)-(iv).

2. Employer bears burden of documenting recruitment efforts

An employer must adequately document its recruitment efforts. Mere assertions of recruitment activity are insufficient without supporting documentation. Paterson Board of Education , 88-INA-88 (Apr. 21, 1988) (employer asserted, without documentation, that it recruited at colleges and universities and advertised in newpapers for a position as high school math teacher).

All findings in the NOF which are not rebutted are deemed admitted. D.C. National Cab Co., Inc. 89-INA-294 (May 22, 1991) (unrebutted challenges deemed admitted where the employer ignored an opportunity to cure rebuttal's defects by submitting information for recruitment report). See also Chapter 18 (Rebuttal).

However, an employer will not be held to an impossible standard of proof. For instance, where a CO alleged that an employer had failed to report the hiring of a U.S. applicant for one of two petitioned positions, and the employer denied having any knowledge of the alleged applicant, and the record contained no evidence that the employer had heard of or hired the alleged applicant, the panel reversed the CO and granted certification to both aliens. Wonder Fashion , 90-INA-96 and 90-INA-97 (July 16, 1991). See also A & R , 90-INA-344 (Oct. 31, 1991).

An employer's narrative account of its recruitment efforts may provide some indication of its own reliability: if the account is internally inconsistent or seems improbable, its truth may be suspect; on the other hand, naturally coherent details may give the account at least an appearance of truth. Cathay Carpet Mills, Inc. , 87-INA-161 (Dec. 7, 1988) ( en banc ).

Discrepancies between the date of an employer's recruitment activities and the date of its summary, as long as consistent with the evidence of record, are harmless error. John G. Braun , 88-INA-124 (June 8, 1988).

3. Employer must produce reasonably requested documentation

If a CO requests specific, relevant and reasonably obtainable documentation of an employer's recruitment efforts, the employer must produce it. Oconee Center, Mental Retardation Services , 88-INA-40 (July 5, 1988) (employer failed to provide job register from its most recent recruitment effort, which CO reasonably requested to aid in determination of whether U.S. workers were available and lawfully rejected).

If the employer does not possess a properly requested document, it should make reasonable efforts to obtain it. Andersen Typographics , 90-INA-287 (June 20, 1991) (employer claimed that it lost or did not receive four resumes, but could have requested copies from the state job service).

See also Chapter 11, II (Evidence), discussing Gencorp , 87-INA-659 (Jan. 13, 1988) ( en banc ).

C. Advertisement of petitioned position

1. Regulatory requirements

Fundamental to the recruitment effort is an advertisement in a newspaper or other publication, whichever is appropriate to the occupation and is most likely to attract responses from able, willing, qualified and avail-able U.S. workers. 20 C.F.R. §§ 656.21(g)(1)-(9); see also , §§ 656.21(h)-(j).

Certain elements must be stated in the advertisement, including:

  • a direction to applicants to report to the local job service;

  • the telephone number and address of the local job service;

  • a description of the job opportunity;

  • a statement of the rate of pay, which must not be below the prevailing wage;

  • an offer of prevailing working conditions;

  • a statement of the minimum job requirements;

  • an offer of training if training is normally provided for the type of job offered; and

  • an offer of wages, terms and conditions of employment no less favorable than those offered to the alien.

20 C.F.R. §§ 656.21(g)(1)-(9).

2. CO may specify advertisement requirements

The CO may specify additional terms to be included in a job advertisement. For instance:

  • Where the CO required that the employer's recruitment advertisements include, among other items, the job's daily work schedule, expected overtime hours, overtime pay, and days of the week off, despite the employer's contentions that these items were not required by sections 656.21(g)(1) through (9), the panel declined to substitute its judgment for that of the CO concerning whether such information was necessary to make a full and fair test of the labor market for a child monitor position. Riccardo Di Capua , 90-INA-489 (Dec. 23, 1991).

3. Assistance of local job office in drafting advertisement

An employer may request the assistance of the local job office in drafting an advertisement. § 656.21(g). The CO, however, is not bound to any statements or actions by the local job service in his or her review of the application. See Chapter 15 (Local Job Service).

4. Implied good faith requirement

Although sections 656.21(g)(1) through (9) do not explicitly impose a "good faith" requirement with regard to advertising, the regulations would be stripped of their purpose if a "good faith" requirement were not implied. See H.C. LaMarche Enterprises, Inc. , 87-INA-607 (Oct. 27, 1988) ( en banc ).

5. Advertisement offering less favorable terms and conditions

Advertisements which offer terms and conditions less favorable than those set forth in the ETA 750 are consi-dered unduly restrictive. Michael and Miriam Lehrer , 88-INA-485 (Dec. 12, 1989); Montana State University , 87-INA-743 (May 9, 1988). Moreover, such advertisements may vio-late § 656.21(g)(8), which requires that advertise-ments describe wages, terms and conditions no less favorable than those offered to the alien. See Mrs. Esther Friedman , 88-INA-583 (Oct. 13, 1989) (certification denied where advertisement did not indicate wage rate for overtime).

6. Ambiguous statement of experience requirement

If the employer makes an ambiguous statement of the experience requirement, the CO's interpretation of the requirement will be given deference by the Board. For example, in University of California, Santa Barbara , 87-INA-689 (June 6, 1988), the employer required "experience" in certain specialized engineering matters, and argued that the dictionary and Thesaurus definitions of experience encompassed its intent to refer to knowledge gained from college studies and not from work experience. The panel held that it was proper for the CO to rely on his interpretation of the experience requirement to find that the terms and conditions of employment offered to the alien were more favorable than those offered to U.S. workers, in violation of § 656.21(b)(6), since an interested applicant could have been led to believe that work experience was required, the employer conceded work experience was not required, and the alien did not have such experience at the time he was hired. The panel also noted that the employer had refused to avail itself of the opportunity to correct the deficiency.

7. Erroneous statement of job requirements; harmless error where advertisement did not decrease pool of applicants

In Allied Color, Inc. , 90-INA-92 (Aug. 6, 1991), the panel found that it was harmless error for the employer to fail to state the exact job requirements concluding that where the employer "originally states its requirements in overly broad fashion, it can hardly be argued that adding a more exacting requirement and readvertisement would result in any more applicants than were originally obtained."

Similarly, in Hough International , 91-INA-24 (Mar. 18, 1991) (per curiam), the CO erred in finding that an employer failed to list the actual minimum requirements where the job required a Bachelor of Science degree in Managerial Technology and the alien did not have a Bachelor of Science but possessed a aster's degree in Managerial Technology. The panel reasoned that "it cannot seriously be argued that any U.S. workers were deterred from applying for the job because they had a Master's rather than a Bachelor's degree in Managerial Technology." To the same effect, United Parcel Service , 90-INA-90 (Mar. 28, 1991).

8. Failure to refer applicants to local employment service

Certification is properly denied if the employer refers to itself by name in the job advertisement instead of referring applicants to the state or local employment service, as required by § 656.21(g). See , e.g. , Surgi-Con Inter- national, Inc. , 90-INA-61 (Apr. 23, 1991) (employer did not state willingness to place ads in compliance with regulation); Bantam Collections, Inc. , 89-INA-301 (Mar. 18, 1991) (employer notified of requirement by local job service and in two NOFs).

D. Publication of advertisement

1. Regulatory requirements

The employer must advertise the job opportunity in a newspaper of general circulation or in a professional, trade or ethnic publication, whichever is appropriate to the occupation and most likely to bring responses from able, willing, qualified and available U.S. workers. § 656.21(g).

2. Timing of publication

If the advertisement is placed in a newspaper it must appear for three consecutive days. If the ad is placed in a professional, trade or ethnic journal, it must appear in the next published edition. § 656.21(g)(9).

3. Location of advertisement in publication

If a job advertisement appears outside of a publication's employment section, the goal of § 656.21(g) -to place the ad where it is "most likely to bring responses" -may be frustrated. The result is the same whether or not the employer controls the § placement of the ad. See Wailua Associates , 88-INA-533 (June 14, 1989) (ad appeared between two legal notices and next to "Tickets for Sale or Wanted").

4. Burden of proof

a. Employer bears burden of proving that publication is appropriate

An employer meets the prima facie requirements of § 655.21(g) by advertising in a newspaper or trade jour- nal and then explaining why that publication is the most appropriate. The employer must establish that the publication covers the labor market area. If the CO asserts that the employer advertised in an inappropriate publication, the employer must establish in rebuttal that the CO is incorrect. Peking Gourmet , 88-INA-323 (May 11, 1989) ( en banc ) (NOF stated that Nation's Restaurant News runs ads for managers, and therefore is inappropriate for advertising job as Chinese specialty chef; employer's rebuttal stated that four ads were for chefs; Board found this was insufficient to establish that CO's finding was in error; J. Tureck dissented on the ground that the CO had ignored the employer's rebuttal).

b. CO bears burden of proving that another publication would be more appropriate

After the employer makes a prima facie showing that it used an appropriate publication, the burden shifts to the CO to explain why another publication would have been more appropriate and more likely to attract qualified candidates. Pater Noster High School , 88-INA-131 (Oct. 17, 1988) (motion rec. den. Dec. 19, 1988).

  • Florida Ordnance, Inc. , 89-INA-106 (Feb. 14, 1990) (employer advertised in Miami Herald for production manager of weapons firm; CO instructed re-advertisement in Wall Street Journal ; employer rebutted by stating that its efforts complied with DOL guidelines and general industry practice; CO failed to explain why Wall Street Journal would be more appropriate publication).

  • In National Industries for the Severely Handi- capped, Inc. , 88-INA-388 (Feb. 13, 1990), the employer advertised a position as project engineer in Livermore Valley in the Tri-Valley Herald , a conglomeration of three newspapers serving fifteen surrounding communities, pursuant to its usual recruitment method. In the NOF and FD, the CO found that the San Francisco Chronicle/Exami- ner was the proper publication, but did not explain why the employer's choice was inadequate. On review, the employer was found to have carried its burden.

  • Judge Guill concurred with the result based on the CO's failure to explain why the medium used was inadequate; however, he stated that company policy as a justification for advertising in a local newspaper is meaningless unless the advertisement policy is likely to bring the most re- sponses. He also stated that where the job offered is for a professional position requiring that the applicant possess special skills, an advertisement distributed only in a limited geographical area may not be appropriate.

  • Azumano Travel Service, Inc. , 90-INA-215 (Sept. 4, 1991). The employer met the burden of demonstrating that advertising in Travel Age West , a travel industry publication, was appropriate for a position as general manager of a travel agency. The burden then shifted to the CO to explain why another publication would be more appropriate. The CO failed to meet that burden.

5. CO not bound by employment service's designation of publication

The designation of a publication by the local employment job service is subject to the authority of the CO; the direction of the state job service creates no rights in the parties. Pacific Sea Products, Inc. , 89-INA-46 (May 2, 1990).

Accord : Azumano Travel Service, Inc. , 90-INA-215 (Sept. 4, 1991); National Industries for the Severely Handicapped, Inc. , 88-INA-388 (Feb. 13, 1990) (J. Guill, concurring); Peking Gourmet , 88-INA-323 (May 11, 1989) ( en banc ).

See also Chapter 15 (Local Employment Service).

6. Overlapping newspaper distribution; circulation not determinative

A CO may not rely on the size of a newspaper's circulation as the sole criterion by which to test which newspaper is most likely to bring responses under § 656.21(g). The regulation does not require an employer to choose, based solely by circulation, between several newspapers of general circulation. Montclair Auto Body Shop , 88-INA-224 (Oct. 26, 1988).

  • In Montclair Auto Body Shop , 88-INA-224 (Oct. 26, 1988), the employer rebutted the CO's requirement of advertising in a more widely circulated newspaper by providing evidence that the country's demography and the smaller paper's real estate advertising made it the most represented in the community where the job (automotive body repairer) was located. The CO's only response -that § 656.21(g) requires advertisement in the newspaper of greater circulation where two newspapers overlap in one geographic area -was incorrect.

7. Local newspaper in small community

Advertising a job in a large metropolitan newspaper is not sufficient for a job in a small community. The employer should have advertised in one of the two local newspapers suggested by the CO. Peace on Earth Trading, Inc. , 87-INA-741 (Apr. 20, 1988).

8. Local newspaper in large community

An employer did not adequately test the labor market for a job in Los Angeles by advertising in a San Jose newspaper. Judicial notice was taken that San Jose is more than 300 miles north of Los Angeles and that the salary offered would not be sufficient to generate applicants willing to relocate. Pacific Sea Products, Inc. , 89-INA-46 (May 2, 1990).

9. Technical position

The CO properly denied certification where the employer advertised for a highly technical position in a newspaper of general circulation. The employer failed to comply with the CO's request that the employer re-advertise in a professional journal. Del Tropico Foods, Inc. , 88-INA-120 (May 2, 1990).

See also National Industries for the Severely Handicapped, Inc. , 88-INA-388 (Feb. 13, 1990) (J. Guill, concurring: where the job offered is for a professional position requiring that the applicant possess special skills, an advertisement distributed only in a limited geographical area may not be appropriate).

10. Publication in national professional journal under § 656.21a

Section 656.21a(a)(1)(iii)(B) requires that job openings for college or university professors be advertised in a national professional journal. See New Jersey Institute of Technology , 87-INA-650 (Feb. 8, 1988) (neither the New York Times nor The Star Ledger qualifies as a professional journal for assistant professors in industrial engineering).

11. Publication in ethnic publication

Advertising a position in an ethnic publication does not rebut a challenge to the business necessity of a language requirement. Such advertisement is only appropriate after the business necessity of the language requirement is established. Kathy's Beauty Salon , 88-INA-370 (July 17, 1989).

  • In Kathy's Beauty Salon , 88-INA-370 (July 17, 1989), the employer advertised in the Los Angeles Herald Examiner for a manicurist with Korean language proficiency. The NOF stated that the language requirement was unduly restrictive, and that if the employer chose not to delete the requirement, it must readvertise in Dong-A Ilbo , an ethnic publication. The CO also indicated that if the language requirement were deleted, advertising in the Herald Examiner would be appropriate.

E. Posting notice of job offer

1. Regulatory requirements

As part of the recruitment process, the employer must document that it has posted a notice of the job opportunity at its place of business. The only exception to this requirement is for jobs in private households. The notices must contain all of the information as required in the newspaper advertisement ( see §§ 656.21(g)(3)-(8)), except that the U.S. applicants must be directed to report to the employer and not to the local employment service. § 656.21(b)(3).

a. Posting requirement cannot be avoided based on company policy

If an employer wishes to obtain labor certification for an alien, it must modify its policies to satisfy the regulations. An employer's argument that it does not normally post job openings, and therefore should not be required to in labor certification cases, is meritless. Bison Fun/Turf Co., Inc. , 90-INA-280 (Apr. 19, 1991), citing Security Life of Denver , 88-INA-246 (Aug. 22, 1989).

b. Posting requirement cannot be avoided based on use of a wider means of publication

The argument is meritless that posting a notice at the place of business serves no purpose and should be waived when a wider means of publication is used, since posting a job notice at the employer's place of business tests for applicants among the employer's own workforce -a different labor pool than a newspaper advertisement or the local employment service reaches. Bison Fun/Turf Co., Inc. , 90-INA-280 (Apr. 19, 1991).

2. Statement of wage offered

A posting which includes a job-level code purporting to represent the salary range for the position offered does not comply with the specific requirement of § 656.21(g)(4), that the employer post the rate of pay. Furthermore, company policy against listing the rate of pay does not take precedence over DOL regulations regarding alien labor certification. If an employer wishes to obtain labor certification for an alien, it must modify its policies to conform to the regulations. Security Life of Denver , 88-INA-246 (Aug. 22, 1989).

3. Prevailing wage

Posting a wage offer below the prevailing wage will result in a denial of labor certification, unless the employer cures the defect in response to the CO's request in the NOF. Yuma Construction Co., Inc. , 89-INA-341 (May 3, 1990).

4. Timing and location of posting

The regulations provide that the job opportunity be posted for at least ten consecutive days in a visible, unobstructed and conspicuous place or places. Suggested locations for posting include proximity to required wage and hour or occupational safety and health notices. § 656.21(b)(3)(ii).

5. Documentation of posting

The employer bears the burden of documenting that it posted the job notice in compliance with the regulations. If the CO requests in the NOF documentation of the posting and a report of results, the employer's rebuttal must include it. The Bowery Savings Bank , 89-INA-86 (Jan. 18, 1990). The submission of a copy of the notice with the request for review is not timely. Import S.H.K. Enterprises, Inc. , 88-INA-52 (Feb. 22, 1989) ( en banc ) (record evidence called into question employer's claim that notice had been submitted previously).

See also Kings County Hospital Center , 87-INA-715 (May 13, 1988) ( en banc ) (remand for determination of whether late submission of rebuttal evidence, stating that no applicants responded to job notice posted at employer's place of business, was harmless error since posting period had ended after rebuttal period); Blarney Stone Bar & Restaurant , 90-INA-67 (Mar. 27, 1991) (in dicta, panel noted that employer's report that notice was posted for "approximately 10 consecutive days" did not satisfy the requirement; that notice be posted for "ten consecutive business days").

F. Additional recruitment efforts

1. Regulatory requirements

The CO, in judging whether a U.S. worker is willing to accept a job, must look at the documented results of the employer's and the job service officer's recruitment efforts, and determine if there are other appropriate sources of workers where the employer should have recruited or might be able to recruit U.S. workers. § 656.24(b)(2)(i).

In determining whether U.S. workers are available, the CO may consider as many sources as are appropriate and can look to the nationwide system of public employment offices as one source. § 656.24(b)(2)(iii).

Recruitment may be required after the filing of an application if appropriate to the occupation. § 656.21(b)(4).

2. CO's authority to direct further recruitment efforts

The CO is authorized to require further recruitment efforts if he or she finds that such recruitment could produce additional qualified job applicants. Intel Corp. , 87-INA-570 (Dec. 11, 1987) ( en banc ); Peking Gourmet , 88-INA-323 (May 11, 1989) ( en banc ); Wailua Associates , 88-INA-533 (June 14, 1989) (additional advertisement under § 656.21(g)); Essex County College , 88-INA-147 (Feb. 1, 1989) ( en banc ) (recruitment through colleges and uni- versities under § 656.21(b)(4)); J.B. Carter Corp. , 88-INA-434 (July 17, 1989) (recruitment through local union under § 656.21(b)(5)); United Airlines, Inc. , 88-INA-44 (Feb. 26, 1990).

  • In United Airlines, Inc. , 88-INA-44 (Feb. 26, 1990), where the job opportunity (program analyst for an airline computerized reservation systems in Denver) was initially advertised in Computerworld magazine. The employer argued that Computerworld is the "bible" of the computer industry and therefore the publication most likely to bring responses of U.S. workers. The panel, however, held that the CO had specific, legi- timate labor market reasons for requiring readvertisement in the Denver Post , namely the general availability of airline personnel in the Denver area in part due to the recent failure of Frontier Airlines. The panel also noted the anomalous nature of the employer's refusal to readver- tise in the Denver Post given its claim to have advertised in other newspapers around the country.

If an employer does not comply with a CO's instruction to recruit further and document the results, § 656.21(b)(4) is violated. See , e.g. , Alynne Rosenfab , 89-INA-218 (June 12, 1990).

3. CO must explain why additional recruitment is necessary

Where an employer has complied with the stated regulatory criteria governing the advertisement and recruitment of employees, the CO should not require additional advertisement and recruitment without offering a reasonable explanation of why the employer's advertisements or recruitment were inadequate to test the job applicant market and why the recruitment efforts recommended by the CO would significantly add to the test. Alpine Electronics of America, Inc. , 88-INA-107 (Mar. 14, 1989) ( en banc ); Intel Corp. , 87-INA-570 (Dec. 11, 1987) ( en banc ); Pater Noster High School , 88-INA-131 (Oct. 17, 1988) (motion rec. den. Dec. 19, 1988); Pioneer Chicken , 90-INA-115 (Apr. 30, 1991); Del Tropico Foods, Inc. , 88-INA-120 (May 2, 1990); United Airlines, Inc. , 88-INA-44 (Feb. 26, 1990); National Industries for the Severely Handicapped, Inc. , 88-INA-388 (Feb. 13, 1990).

In directing re-recruitment, a CO may rely on the higher placement rate for jobs advertised in a certain publication,

  • In Intel Corp. , 87-INA-570 (Dec. 11, 1987) ( en banc ), the CO had required readvertisement in Computerworld (employer had advertised in Elec- tronic News ) for positions relating to software engineering. The CO imposed this requirement without explanation, despite her predecessor's having not challenged prior recruitment in Electronic News and the state agency's having recommended Electronic News . The Board noted that evidence that Computerworld is read by a different category of prospective employees or has a higher rate of job placement success than Electronic News is the type of evidence the CO could have used in finding that advertising only in Electronic News was insufficient. The matter was remanded for further consideration.

however, the justification for requiring re-recruitment need not be elaborate.

  • In Del Tropico Foods, Inc. , 88-INA-120 (May 2, 1990), the panel found that the CO's explanation that the employer should have advertised for the position of Food Chemist in a professional journal such as Food Technology rather then solely in the local newspaper (the Los Angeles Herald Examiner ), though not elaborate, was adequate to explain why the publication used by the employer failed to provide an adequate test of the labor market. See also Pioneer Chicken , 90-INA-115 (Apr. 30, 1991) (CO's explanation adequate).

G. Deficiencies in recruitment

1. Existence of applicant responses does not cure deficiencies

The fact that some U.S. workers respond to a job application or advertisement does not indicate that recruitment problems, if any, were insubstantial. The existence of responses does not alleviate the harm potentially caused by the defective applications or advertisements. Maple Derby, Inc. , 89-INA-195 (May 15, 1991) ( en banc ).

2. Employer's refusal to recruit as required

If an employer wishes to obtain labor certification for an alien, it must modify its policies to conform with the regulations. An employer's argument that it does not normally post job openings, and therefore should not be required to in labor certification cases, is meritless. Bison Fun/Turf Co., Inc. , 90-INA-280 (Apr. 19, 1991), citing Security Life of Denver , 88-INA-246 (Aug. 22, 1989).

3. Failure to follow normal recruitment procedures

An employer who does not demonstrate that it followed its normal recruitment procedure in interviewing U.S. applicants violates § 656.20(b)(3)(ii). Taam Shabbos , 90-INA-87 (May 20, 1991). In Taam Shabbos , the employer abandoned the recruitment procedure after its initial review of the applications. From that point, an independent agent controlled and carried out the U.S. applicants' interviews and rejections, and then filed the recruitment report and rebuttal on behalf of the employer. The record contained no evidence that the agent was qualified to evaluate the credentials of the applicants or that any qualified representative of the employer supervised or reviewed the agent's actions.

IV. Readvertisement and re-recruitment

A. Cure of error by readvertisement

An error in recruitment may be cured, if appropriate, by readvertisement during the rebuttal period. See , e.g. , Altair Engineering, Inc. , 88-INA-61 (Apr. 19, 1988) (error by employer in the first ad held to be harmless since employer established good faith in readvertising pursuant to CO's request in NOF).

See also Chapter 12, III, A (Final Determination), regarding the inappropriateness of issuing a FD where the employer agrees to cure an error by readvertisement.

B. Conforming to CO's readvertisement instructions

If an employer readvertises a position, the new advertisement must address the defect as instructed by the CO. If the new advertisement does not conform to the CO's instructions, certification may be denied. For example:

  • Where the CO directed the employer to readvertise offering the correct prevailing wage of $538.00 for an applicant with no experience and $565.38 for an applicant with one year of experience (the amount the alien was earning after an annual wage increase), but the employer readvertised stating only the offer of $538.00 for an appli- cant with no experience, certification was denied pursuant to § 656.21(g)(8). Boyle Engineering Corp. , 90-INA-523 (Jan. 31, 1992) (rejecting employer's argument that the NOF directed an illegal action - i.e. , requiring one year of experience which alien did not have when hired -since nothing prevented employer from hiring inexperienced applicant).

  • An advertisement which contained the "duty" of tutoring in the Arabic language, after the employer was instructed by the CO to delete the requirement, was found unduly restrictive by the Board and denial of certification was affirmed. While the employer deleted the requirement of fluency in Arabic from the "requirements" portion of the advertisement, the advertisement still contained the "duty" of tutoring in the Arabic language. The CO explicitly instructed the employer to delete the requirement in all forms. Majid Kallabat , 88-INA-248 (Feb. 6, 1990); cf . challenge to job duties arising to challenge to the job itself, discussed in Chapter 32, IV (Unduly Restrictive Job Requirements).

  • In Save On Discount , 87-INA-623 (Apr. 5, 1988), the failure to include in the advertisement essential job duties, which were designated in an amended job order and application form, was not harmless error. The employer failed in its second advertisement to describe the job duties as a "Store Manager" as revised in the amended job order and application, and instead advertised for a "Merchandise Manager" as the job had been originally (and erroneously) described.

  • See also Kathy's Beauty Salon , 88-INA-370 (July 17, 1989), supra , for the proposition that merely complying with a direction to readvertise in an ethnic publication does not cure a challenge to the business necessity of a foreign language requirement.

C. NOF must state clear directions

If an employer reasonably misinterprets and responds to an NOF, issuing an FD denying certification may be inappropriate. For instance, where the NOF could have reasonably been construed to mean that the employer must justify the business necessity of a foreign language requirement and readvertise (the employer did not state the foreign language requirement in a previous ad) only if it failed to justify it, the matter was remanded for a determination of whether the requirement was justified and, if so, to permit readvertisement. Caliche Records , 88-INA-438 (Aug. 14, 1989).

See also Chapter 12, III, B and Chapter 17, II, D (Notice of Findings), regarding inappropriateness of issuing FD where NOF reasonably misunderstood.

D. Employer not bound by suggested publication

An employer's readvertisement in a publication dif-ferent from that suggested by the CO is not improper if the employer can document that the publication reaches a fair

sample of the labor market. Alpine Electronics of America, Inc. , 88-INA-107 (Mar. 14, 1989) ( en banc ) (CO suggested that IEEE Spectrum was more appropriate publication than Electronic News for advertising position of electronic engineer, but did not specifically require readvertisement in any specific publication; employer readvertised in Electronic Engineering Times ).

E. Re-recruitment under more restrictive requirements

The CO is not required to allow an employer to re-recruit under more restrictive requirements after the employer has recruited and received applications from qualified U.S. workers. Universal Energy Systems, Inc. , 88-INA-5 (Jan. 4, 1989) ( en banc ).

F. Readvertisement must be documented

Where the employer fails to establish compliance with the recruiting requirements of job posting and advertising, certification will be denied. John's Painting & Decorating Co. , 89-INA-214 (Feb. 28, 1990) (employer failed to submit adequate documentation during the rebuttal period of an amended readvertisement and job posting).

G. Harmless error in re-recruitment

1. Error in Form ETA 750

Where an employer conducts re-recruitment on the terms ordered by the CO, and such re-recruitment conforms to the regulations, a failure to amend the Form ETA 750 is a harmless error. Bagel Place , 90-INA-3 (Nov. 16, 1990) (remanded to determine whether recruitment efforts sufficient); Driftwood Beach Club , 89-INA-44 (Oct. 30, 1989). Similarly, an unclear Form ETA 750 is harmless error, since the labor market has been adequately tested by the advertisement. California Redwood Signs , 90-INA-348 (June 20, 1991).

2. Error in readvertisement

If the readvertisement does not conform to the CO's instructions, the matter may be remanded for consideration of the change in the nature of the job. Arturio & Rosalba Zendejas , 90-INA-349 (Mar. 5, 1991) (per curiam order).

However, an employer's failure to readvertise and list the regular hourly wage may be harmless error, where the employer lists only the overtime wage in the original ad. It is widely known that overtime wages are generally one and one-half times the base pay rate. Since listing the overtime rate would tend to encourage, not discourage, potential applicants, the panel held that further advertising would be unlikely to produce additional qualified applicants. Belle Mayer , 89-INA-332 (Sept. 5, 1990). Cf . Peking Gourmet , 88-INA-323 (May 11, 1989).

H. Timeliness of rebuttal; ongoing recruitment efforts

Generally, employers should be afforded an adequate opportunity to complete re-recruitment that cannot reasonably be completed within the rebuttal period; however, employers may be required to request an extension of time to complete rebuttal. See Chapter 19, III (Rebuttal).

I. Re-recruitment under less restrictive requirements

In certain circumstances, a CO may, in his or her discretion, consider including a requirement, as part of an employer's cure of the defects, that employer attempt to offer the job to a U.S. worker previously rejected for failure to meet the originally stated restrictive requirement, but who meets all the stated requirements as changed. If such a U.S. worker can no longer be contacted, or is no longer interested in the job, then the employer would be required to conduct a new recruitment. Prima Royale Enterprises, Ltd. , 92-INA-262 (Sept. 20, 1993).

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