Department of Labor Encourages Regional Certifying Officers to Require Evidence that U.S. Workers are Unavailable While Labor Certification Applications are Pending

As reported last week on Greenberg Traurig’s immigration website, the Department of Labor Region I announced that employers will be required to conduct additional advertisement for Reduction in Recruitment cases, effective December 1, 2001. With this announcement, the inevitable question arose whether Region I’s change in policy foreshadowed measures to be taken by other DOL Regional Offices in the context of labor certification applications.

In its recent meeting with the American Immigration Lawyers Association’s liaison committee, the Department of Labor (DOL) national office made another significant announcement regarding processing labor certification applications. In that meeting, the DOL stated that when reviewing labor certification applications for a final determination, Regional Certifying Officers should, at a minimum, ask employers who have recently laid off workers in the same geographic area to prove that the terminations were not in the same occupational category or that laid-off workers were offered the opportunity to apply for the position offered. The new announcement is significant in that it lengthens the period of recruitment from the six-months prior to the filing of the labor certification application, to an indefinite period of time, which includes the time that the application is pending before the DOL. Furthermore, employers must keep track of those positions for which it has labor certification applications pending and determine if any similarly-situated positions have been terminated. If there have been lay-offs in the same occupational category, employers should contact those individuals for interviews to determine if they are eligible for the position.

The DOL stated that it has not formulated a policy regarding layoffs in the same company but in different geographic locations, or industry-wide layoffs.