DOL Issues Memo Dealing with Impact of Layoffs on RIR Labor Certification Applications

Dale Ziegler, Chief of the Division of Foreign Labor Certification for the Department of Labor ("DOL"), issued a memorandum on March 25, 2002 which provides guidance to Regional Certifying Officers ("CO") regarding adjudication of RIR labor certification applications in an economy experiencing layoffs.

The memorandum clarifies that the standards for evaluating RIR applications are not changed by the weak economy. The CO must still examine the adequacy of the recruitment conducted by the employer applicant and the availability of U.S. workers for the occupation involved in the employer’s application. The standards still require print advertisement and enough other activities to demonstrate a pattern of recruitment.

According to the memo, application of these standards in the current economic climate involves examining several issues. Specifically, in order to assess the availability of U.S. workers, the CO shall consider the regional offices recent experience in processing non-RIR cases involving the same occupation, shall contact state agencies to obtain information regarding the current labor market, including information on the type and number of workers registered for unemployment benefits, and shall review relevant articles in the media that have appeared in the prior six month period regarding availability of workers in the occupation in the intended area of employment.

The memorandum instructs the RCO to send a letter to the employer-applicant if the CO has reason to believe that the employer-applicant may have, subsequent to testing the labor market, laid off any workers within the last six months. This letter shall ask the employer-applicant if any lay-offs have occurred in the last six months in the occupation in question, and if so, provide the number of workers that were laid off in the occupation and provide documentation of the consideration given to laid off workers for the position for which certification is sought. If U.S. workers were considered and rejected, documentation must be provided to support the lawful job-related reasons each applicant was rejected.

If there are general layoffs in the industry or occupation in the area of intended employment after filing, the CO should offer the employer-applicant an opportunity to place an additional advertisement to test the labor market, or to request that the case be remanded to the state for regular processing. The employer-applicant must give potential applicants a minimum of two weeks to respond to the additional advertisement, and the employer-applicant must submit documentation supporting the lawful job-related reasons why applicants were rejected.

If there have been layoffs by the employer-applicant and additionally other employers in the area have laid off workers in the same occupation, the memorandum instructs that the CO should obtain information on the possible availability of qualified U.S. workers through the methods specified above.

Clearly the DOL is keenly aware of the soft employment market and is skeptical of RIR applications in this economy. Therefore, we recommend the following to ensure the success of your application:

Document a true pattern of recruitment that shows some type of recruitment activity over a minimum of a two month period. This means that printed advertisements should be placed at 30 day intervals, and there should be some other type of recruitment done in conjunction with the print advertisement.

Be proactive in addressing the issue of layoffs. If layoffs have occurred at your company, or in your industry, show how the individuals who were laid off were afforded the opportunity to apply for the position, and why the ones who applied were not qualified.

Strategize to obtain the long-term goal. It may be better to file a non-RIR application at this time to capture a priority date and conduct advertising at a later time, when the market is presumably better.

Aggressively pursue options other than labor certification for obtaining permanent residency. Review qualifications of applicant to determine if EB-1 is a possibility.

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