Department of Labor's Statements Regarding Recruitment for Labor Certification Cases Raise Additional Questions

The downturn in the economy and the announcements of lay-offs will cause labor certification cases to become more difficult. The recent spate of announcements by national and regional Department of Labor offices confirms that the availability of U.S. workers is a critical issue for the agency. This article addresses DOL’s sense that there may be qualified U.S. workers in the labor market and processing delays at local and regional DOL offices.

Only a month ago, the Department of Labor Region I Office in Boston announced that it would impose new advertising requirements for all labor certification applications in which a request for expedited processing is made under the Reduction in Recruitment program. As reported by Greenberg Traurig, Region I intended to double the advertising requirements necessary to demonstrate that an employer has made a good faith effort to find qualified U.S. workers. However, in an unexpected announcement during the week of November 19, 2001, Region I rescinded its new rule. Moreover, without any elaboration, Region I stated that it would not specify how many ads an employer must place prior to filing a labor certification application.

Region I is responsible for labor certifications for positions in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. However, it is clear that other DOL regional offices will modify their rules regarding recruitment in the context of labor certification applications. For example, effective January 1, 2002, the Atlanta regional office will require employers to place at least three newspaper advertisements during the six month period immediately prior to filing the labor certification application. Currently, employers filing labor certification applications for jobs within the jurisdiction of the Atlanta regional office only have to publish one ad in the local newspaper of general circulation. By contrast, the Dallas regional office informed Greenberg Traurig that it will wait for guidance from the DOL national office.

In addition, the DOL national office confirmed that it would encourage all Regional Certifying Officers to inquire about the availability of U.S. workers if it has been reported that a sponsoring employer has laid off workers while its labor certification application has been pending. In recent remarks, the DOL made the following important statements that clearly depart from their policies regarding RIR cases:

[I]f a certifying officer is aware that an employer is laying-off in the same occupation in the same geographic area, it is reasonable and should be expected that the certifying officer will ask for evidence that the lay-offs were not in the same occupational categories as the job offered in the labor certification, or that the laid-off workers were offered the opportunity to apply for the position offered. [I]t is the position of DOL that a certifying officer must review the case in the context of the job market as it stands on the day of review, and not on the day of filing. DOL disagrees with the concept that for an RIR, the appropriate scope of review is the six-month period of recruitment. With respect to laid-off US workers in similar occupations, DOL takes the position that the job opportunity must somehow have been offered to such workers in order for the application to be certifiable. (emphasis added)

DOL’s announcements reflect a reactionary mode in the wake of news regarding the jump in unemployment rates. It may take months to obtain a clearer perspective as to DOL’s requirements for RIR and traditional labor certification cases. In the meantime, employers are reassessing whether to file labor certification applications under the traditional method or the RIR process. Under either method, employers and their workers must be prepared to encounter longer waiting periods for the DOL to process cases. In recent months, processing times have slowed at DOL offices around the country. This slow-down is due, in part, to the flood of labor certification applications received prior to May 1, 2001, a significant date for individuals who entered at an undesignated location on the border or overstayed their period of authorized stay. Additionally, based on the DOL national office statements to Regional Certifying Officers, if lay-offs occur within a company in similar types of positions as the one described in the labor certification application, terminated workers should be contacted to determine if they are qualified for the position. Failure to contact these individuals could cause the labor certification to be denied.

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