The Labor Certification Criteria
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Layoffs and Survivability of Alien Labor Certification
The DOL HQ released the guidelines on this issue on March 20, 2002. The guidelines say to the Certifying Officers that "Yogi Berra \'It Ain\'t Over Till It Is Over.\'" The country\'s poor economy and high unemployment rate change the job of the Certifying Officers as follows:
b Employer\'s Layoffs During the 6-Month After Submitting RIR:
The Certifying Officers are directed to send a letter called Notice of Finding demanding to submit and explain the situation within 35 days, if the employer indeed laid off the employees in the specific occupation that the employer has submitted RIR application. If it is explained satisfactorily, the Certifying Officers will approve the application. Otherwise, the Certifying Officers will deny the application. Accordingly, the practice of some Certifying Officers who denied RIR strictly based the company\'s layoff record after 9/11without giving an opportunity to the employer should stop such practice.
b General Layoff by Other Employers in the Industry in the Area:
Even though the employer did not layoff similar occupation employees, the Certifying Officers are required to take additional action, should they gain the information that there was a general layoff by the employers in the specific industry and in the specific area for the occupation. Employer will be given an option to place one more ad and submit the recruitment result after two weeks. Based on the result, the Certifying Officer should make a decision. Employer may decline to take such option and request the Certifying Officer to convert it to a regular application.
b Emplolyer\'s Layoff plus On-Going General Layoff in the Industry in b the Area:
The Certifying Officers are then mandated to collect information and data on their own initiatives using basically three sources: (1) Region\'s own experience and record of regular labor certification applications received; (2) State offices (SWA) record including unemployment compensation claims, job banks, etc.; (3) News and reports of various current articles on unemployment. After reviewing all these sources of data, should the Certifying Officers be convinced that there were qualified workers available in the industry and in the area, the Certifying Officers should deny the RIR application and remand to the state offices for further processing as a regular application.
Thus bug does not stop at the submission of RIR application any more. The days are gone that when RIR applications were successfully forwarded to the Certifying Officers, such applications were more or less rubber stamped by the Certifying Officers. The agencies will from here on be proactive in investigating the job market conditions and determine availability of U.S. workers for the job. Generally, the jobs which were hit hardest will face rough road ahead in labor certification application