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Legal Citations for ILW.COM's Seminar
""Labor"-Intensive Immigration Practice: Advanced DOL Strategies on the Eve of PERM"
Part 2 held on May 16, 2003

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From Rebecca Burdette

U.S. Department of Labor: Employment and Training Administration Region IV

From Angelo Paparelli

Strategic choice: Post-Enron Disclosure Obligations?

Assume that an employer in an RIR case receives a Ziegler industry-layoff/availability NOF offering option of one time ad or reversion to SWA for supervised recruitment:

  • May an employer get two bites at the apple?
  • May employer test market with one-time ad to see what results flow?
  • Is there a duty to turn over evidence of recruitment that suggests availability?
  • Is there a duty to interview applicants who appear qualified based on resume?

Questions Raised:

  • What is purpose of labor certification: labor market test or good faith effort to find a U.S. worker?
  • What evidence is material to the recruitment?
  • BALCA has said that evidence of availability precludes approval of Labor Certification. But BALCA cases are not binding precedent.
  • But see: 20 CFR 656.21(j)(1): The employer shall provide to the local office a written report of the results of all the employer's post-application recruitment efforts during the 30-day recruitment period; except that for job opportunities advertised in professional and trade, or ethnic publications, the written report shall be provided no less than 30 calendar days from the date of the publication of the employer's advertisement.
  • And consider GAL 1-97 which set up RIR: 6. Resume Screening.
  • Because all job requirements will have been thoroughly evaluated prior to recruitment, SESA staff shall screen resumes of U.S. workers only against the accepted job requirements. Only those resumes of fully qualified applicants shall be sent to the employer and to the regional office. Recruitment on an application will ceased after it is forwarded to the Regional Office. Late resumes may be sent to employers having similar job offers or returned to applicants. After labor certification has been issued, resumes will be discarded. Regions shall retain resumes of qualified applicants when a NOF or Final Determination has been issued.
  • Cited regulation and GAL 1-97 both suggests that only certain time frames are relevant.
  • Similarly INA 212(a)(5)(A)(i)(I) is phrased in present tense. There "are not sufficient workers who are able, willing, qualified and available at the time of application for a visa and admission to the U.S. and at the place where the alien is to perform such skilled or unskilled labor".
  • And (212)(a)(5)(A)(i)(II) is phrased in future tense. "Employment of such alien will not adversely affect the wages and working conditions of U.S. workers.
  • Is RIR merely a strategic choice? Is RIR part of the normal test of the labor market in situations where the employer opts to forgo RIR and engage in supervised recruitment?

Each employer and employer's counsel must decide the question. There are arguments in support on both sides.

Also consider Matter of Silver Dragon and INA 274C, "Falsely made documents". See definition of falsely made.