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Note sent by Joel Stewart as part of ILW.COM Seminar
""Labor Certification with Joel Stewart"

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Dear Conference Participants:

One of the participants suggested that we should present a comparison of the regions, comparing and contrasting the type of recruitment that is acceptable and the quantity of evidence needed to demonstrate patterns of recruitment, business related justification and non-availability. This is clearly what the participants all would like to get out of the telephone conferences, and the purpose of this memo is to request your participation and input so I can prepare a survey of current RIR procedures.

The same participant suggested that I clarify what I was trying to say in the February 22nd conference about the pros and cons of RIR vs. Regular processing. I was referring to regular (non RIR) and RIR cases, and not to new RIR and old RIR cases. My opinion is that in regions where regular recruitment is not substantially backlogged, regular is probably a better option, especially since we don't have any reliable standards about available v. non-available occupations and the number of ads required by the CO for RIR certification in each region. There are also certain advantages to regular recruitment, as it provides a chance to modify the job requirements and details prior to placing the ad, without running the risk of additional advertising after review by the CO.

A quick determination of regular cases is possible with limited review by the CO, especially if the case has few job applicants and no restrictive requirements. I also offered my opinion that a prudent approach is to advertise three times. I decided on this amount because the regulations require three ads as the proper amount for non-RIR cases.

Since the official policy of the USDOL is that one ad might be enough for an RIR case, three ads should clearly pass muster, even by the toughest COs. The interval between the numbers of ads is a judgment call, depending on local practice, client requirements, and availability of U.S. workers. Whether it would be three days in a row, three weeks consecutively, or three months consecutively should be determined by the practitioner.

My recent experience in California is that the EDD has been requiring as little as one ad, but three might be appropriate, especially where the CO has been historically intransigent, and used to requiring that recruitment should take place in each of the six months preceding the filing date. Harry Scheinfeld recently stated that one ad should be enough, and he emphasized that the DOL doesn't know whether the Employer had qualified applicants or not and that multiple ads do not cure the COs lingering doubts. Harry has also stated that he has been unable to compel the Regions to follow national policy.

The DOL in Connecticut posted RIR requirements on the Internet, suggesting that multiple ads could be as little as one week apart. In my office we have adopted a compromise approach of two to three ads, sometimes one week apart, but preferably spanning at least two different months, plus a 45-day listing in America's Job Bank. One scenario for a conservative state like California would be for the recruitment to span three calendar months. For example, an ad could be placed in late March, mid-April and early May, with the 45 day job bank listing spanning one week of March, four weeks of April, and one week of May.

Kindly provide your comments, observations and opinions about your practice in specific regions, so I can include them in a comprehensive survey report to all seminar participants.

Joel Stewart