December 1, 2003 -- The Department of Labor (DOL) recently issued a new field memorandum to Certifying Officers (COs) on handling reduction in recruitment (RIR) labor certification cases in light of both the changing economy and the huge case backlogs that have developed at state and regional labor department offices nationwide. The memorandum, issued on November 20, 2003 by Division of Foreign Labor Certification (DFLC) Chief William L. Carlson, provides that COs need to evaluate cases in regional queues on the basis of completeness, compliance, and adequacy of recruitment efforts. If applications are deemed complete and otherwise compliant with DOL regulations and policies, COs are instructed to certify cases automatically in certain instances, and further evaluate recruitment efforts in others. In a break with longstanding procedures, new recruitment may be ordered directly by the CO, rather than having the case transferred back to a state office (usually referred to as a state workforce agency or SWA). Reports are that DOL Region VI, operating out of San Francisco, has already started to recall cases previously remanded to the California SWA; other regions are also expected to utilize the procedures set forward in the memorandum.
The "Completeness/Compliance" Test and Layoffs
According to the Carlson memorandum, cases in regional office queues should be reviewed based upon completeness of the application and compliance with such regulatory requirements as an appropriate pattern of recruitment and the absence of restrictive job requirements. The memorandum states that any reduction in recruitment application that is either incomplete or deemed not to be in compliance with regulatory requirements is to be denied, with a Notice of Findings (NOF) issued. The memorandum deals in particular with the issue of layoffs in the review of cases. Layoffs by the requesting employer that have not been properly addressed are identified in the memo as a significant problem area. Where there have been layoffs, the issuance of a NOF, which is in essence a notice of intent to deny unless the employer provides an acceptable explanation or justification in a given period of time, would be consistent with the current practice in most jurisdictions.
The Carlson memorandum alludes to employer-specific layoffs, but does not address the limiting factors of occupational classification, time and geography, as did previous DOL directives. In the past, the DOL has taken the position that employer layoffs were generally only relevant when they took place within six months prior to consideration of a case, and were in the same occupation and same geographic region where the labor certification is being sought. Since the Carlson memorandum does not explicitly repeal this policy, it would appear to be still in effect, at least until the issue is clarified by a future DOL directive or actual agency conduct. We are seeking further clarification of this issue with DOL staff in Washington, DC.
As has been the case, in order to respond appropriately to a NOF on layoffs, employers will have to address the issue of whether layoffs have occurred, and if so, where they are taking place. If employees in a given occupation are being laid off, the skill sets of the laid-off employees will need to be discussed and contrasted with any positions for which labor certification is sought. Of course, the greater the contrast in the jobs (for example, clerical staff vs. systems engineers) the better, but the closer the skill sets of the laid-off workers are to those that are listed in the certification, the more detail that will need to be provided. Employers should also be able to show that their internal systems and procedures permit laid-off employees to apply for other positions, in addition to outplacement or other assistance that is being offered.
Again, under DOL policy of the past few years, employer-specific layoffs are only problematic if they are in a given occupation and in an area of intended employment, defined as within the normal commuting distance. Cross-country layoffs within the same occupation should not be problematic, though the Carlson memorandum does not explicitly address this issue. Again, we are seeking further clarification on this point.
CO Handling of Clearly Approvable Cases
Assuming that an RIR labor certification has passed muster under the "completeness-compliance test," the CO is then instructed to evaluate the sufficiency of recruitment. The DOL has developed a bright line test that should permit at least some cases to be speedily certified.
Where a case has withstood the "completeness-compliance test," COs are instructed to approve all applications for positions requiring a bachelor's degree and three or more years of experience or a master's degree plus six months of experience or more, assuming that the requirements are appropriate for the positions.
In cases not meeting the bachelor's plus three years or master's plus six months requirement, COs are instructed to review the applications to determine if the level of recruitment and detail as reflected in the recruitment report are satisfactory. If satisfactory, the cases should be certified. If not, employers will be sent a letter offering them the opportunity to re-test the labor market, or, alternatively, to withdraw the case. Employer options are outlined below.
Please note that the Carlson memorandum does not detail what constitutes satisfactory recruitment. Recruitment requirements have typically included one print ad, though some regions have periodically required more for certain occupations, as well as additional evidence of recruitment such as state job bank placement, Internet advertisements, internal company recruitment and job fairs. The Carlson memorandum instructs COs to focus on whether recruitment as documented in reports for a given job opening is satisfactory, rather than whether there is perceived availability of U.S. workers as a result of layoff reports and market conditions. Still, a CO's evaluation of whether a recruitment report is satisfactory may hinge on his or her perception of market conditions.
Retest Options
Where a CO has doubts about whether recruitment is satisfactory, the Carlson memorandum establishes several options for employers.
Withdraw the application totally. In the event that an employer does not wish to recruit and hire, the application may be withdrawn.
Withdraw the RIR request. This option will allow employers to withdraw the RIR request and have a case remanded to the SWA. A case would normally be placed back in the queue based on its priority date, but employers will have the option of requesting that a case be put into the queue based on its remand date. In other words, the case would normally be placed back in the queue with traditionally filed cases filed at the time that an RIR case is filed. Placing it back in the queue by remand date will put the case in the back of the line, which could be helpful if the employer, either because of market conditions or other reasons, wishes to put off additional recruitment as long as possible. In any event, the priority dates would be retained. The Carlson memorandum is silent in regard to whether such cases would later be re-convertible back to RIR cases, but should be so if filed prior to August 2001 and otherwise eligible for conversion. Preservation of the priority date for later filing as a PERM case should also be possible, assuming that the PERM final rule tracks the proposal.
Conduct a Retest of the Labor Market. In a break with previous DOL practice, under which cases are remanded back to the SWA for a retest of the labor market, the Carlson memorandum states that the regional offices should direct the retest effort. The purpose of this is ostensibly to help clear state backlogs or at least to avoid exacerbating them. The memorandum further instructs that while the general type of advertising used in RIR cases may be acceptable, recruitment reports will need to specifically identify the disposition of all applicants for a position. Moreover, employers will be encouraged to submit resumes. Recruitment reports will need to be submitted within sixty days of the date of the original letter to the employer, and if the retest documentation is not provided within seven days of the due date, the case will be considered to be abandoned. Two new aspects of the Carlson memorandum that relate to the retest are a "look back" provision that allows employers to utilize recruitment already conducted when the CO letter arrives, and the allowance of at least minor modifications or amendments to the labor certification application. These are discussed further below.
The "Look Back" Provision
The Carlson memorandum provides that whenever additional recruitment is required to support an RIR application, employers should be able to use advertisements placed within the past six months. Therefore, if an employer already retested the labor market within the six months prior to receiving the CO letter, it would not be necessary to incur the costs of any additional recruitment efforts.
However, employers using previously published ads will be expected to submit recruitment reports detailing why applicants were not selected. A copy of the advertisement will need to be submitted; in addition, the Carlson memorandum instructs that COs may require the submission of resumes.
The "Completeness/Compliance" Test and Layoffs
According to the Carlson memorandum, cases in regional office queues should be reviewed based upon completeness of the application and compliance with such regulatory requirements as an appropriate pattern of recruitment and the absence of restrictive job requirements. The memorandum states that any reduction in recruitment application that is either incomplete or deemed not to be in compliance with regulatory requirements is to be denied, with a Notice of Findings (NOF) issued. The memorandum deals in particular with the issue of layoffs in the review of cases. Layoffs by the requesting employer that have not been properly addressed are identified in the memo as a significant problem area. Where there have been layoffs, the issuance of a NOF, which is in essence a notice of intent to deny unless the employer provides an acceptable explanation or justification in a given period of time, would be consistent with the current practice in most jurisdictions.
The Carlson memorandum alludes to employer-specific layoffs, but does not address the limiting factors of occupational classification, time and geography, as did previous DOL directives. In the past, the DOL has taken the position that employer layoffs were generally only relevant when they took place within six months prior to consideration of a case, and were in the same occupation and same geographic region where the labor certification is being sought. Since the Carlson memorandum does not explicitly repeal this policy, it would appear to be still in effect, at least until the issue is clarified by a future DOL directive or actual agency conduct. We are seeking further clarification of this issue with DOL staff in Washington, DC.
As has been the case, in order to respond appropriately to a NOF on layoffs, employers will have to address the issue of whether layoffs have occurred, and if so, where they are taking place. If employees in a given occupation are being laid off, the skill sets of the laid-off employees will need to be discussed and contrasted with any positions for which labor certification is sought. Of course, the greater the contrast in the jobs (for example, clerical staff vs. systems engineers) the better, but the closer the skill sets of the laid-off workers are to those that are listed in the certification, the more detail that will need to be provided. Employers should also be able to show that their internal systems and procedures permit laid-off employees to apply for other positions, in addition to outplacement or other assistance that is being offered.
Again, under DOL policy of the past few years, employer-specific layoffs are only problematic if they are in a given occupation and in an area of intended employment, defined as within the normal commuting distance. Cross-country layoffs within the same occupation should not be problematic, though the Carlson memorandum does not explicitly address this issue. Again, we are seeking further clarification on this point.
CO Handling of Clearly Approvable Cases
Assuming that an RIR labor certification has passed muster under the "completeness-compliance test," the CO is then instructed to evaluate the sufficiency of recruitment. The DOL has developed a bright line test that should permit at least some cases to be speedily certified.
Where a case has withstood the "completeness-compliance test," COs are instructed to approve all applications for positions requiring a bachelor's degree and three or more years of experience or a master's degree plus six months of experience or more, assuming that the requirements are appropriate for the positions.
In cases not meeting the bachelor's plus three years or master's plus six months requirement, COs are instructed to review the applications to determine if the level of recruitment and detail as reflected in the recruitment report are satisfactory. If satisfactory, the cases should be certified. If not, employers will be sent a letter offering them the opportunity to re-test the labor market, or, alternatively, to withdraw the case. Employer options are outlined below.
Please note that the Carlson memorandum does not detail what constitutes satisfactory recruitment. Recruitment requirements have typically included one print ad, though some regions have periodically required more for certain occupations, as well as additional evidence of recruitment such as state job bank placement, Internet advertisements, internal company recruitment and job fairs. The Carlson memorandum instructs COs to focus on whether recruitment as documented in reports for a given job opening is satisfactory, rather than whether there is perceived availability of U.S. workers as a result of layoff reports and market conditions. Still, a CO's evaluation of whether a recruitment report is satisfactory may hinge on his or her perception of market conditions.
Retest Options
Where a CO has doubts about whether recruitment is satisfactory, the Carlson memorandum establishes several options for employers.
Withdraw the application totally. In the event that an employer does not wish to recruit and hire, the application may be withdrawn.
Withdraw the RIR request. This option will allow employers to withdraw the RIR request and have a case remanded to the SWA. A case would normally be placed back in the queue based on its priority date, but employers will have the option of requesting that a case be put into the queue based on its remand date. In other words, the case would normally be placed back in the queue with traditionally filed cases filed at the time that an RIR case is filed. Placing it back in the queue by remand date will put the case in the back of the line, which could be helpful if the employer, either because of market conditions or other reasons, wishes to put off additional recruitment as long as possible. In any event, the priority dates would be retained. The Carlson memorandum is silent in regard to whether such cases would later be re-convertible back to RIR cases, but should be so if filed prior to August 2001 and otherwise eligible for conversion. Preservation of the priority date for later filing as a PERM case should also be possible, assuming that the PERM final rule tracks the proposal.
Conduct a Retest of the Labor Market. In a break with previous DOL practice, under which cases are remanded back to the SWA for a retest of the labor market, the Carlson memorandum states that the regional offices should direct the retest effort. The purpose of this is ostensibly to help clear state backlogs or at least to avoid exacerbating them. The memorandum further instructs that while the general type of advertising used in RIR cases may be acceptable, recruitment reports will need to specifically identify the disposition of all applicants for a position. Moreover, employers will be encouraged to submit resumes. Recruitment reports will need to be submitted within sixty days of the date of the original letter to the employer, and if the retest documentation is not provided within seven days of the due date, the case will be considered to be abandoned. Two new aspects of the Carlson memorandum that relate to the retest are a "look back" provision that allows employers to utilize recruitment already conducted when the CO letter arrives, and the allowance of at least minor modifications or amendments to the labor certification application. These are discussed further below.
The "Look Back" Provision
The Carlson memorandum provides that whenever additional recruitment is required to support an RIR application, employers should be able to use advertisements placed within the past six months. Therefore, if an employer already retested the labor market within the six months prior to receiving the CO letter, it would not be necessary to incur the costs of any additional recruitment efforts.
However, employers using previously published ads will be expected to submit recruitment reports detailing why applicants were not selected. A copy of the advertisement will need to be submitted; in addition, the Carlson memorandum instructs that COs may require the submission of resumes.