March 20, 2002
MEMORANDUM FOR: REGIONAL CERTIFYING OFFICERS
FROM: DALE M. ZIEGLER /s/
Chief
Division of Foreign Labor Certification
SUBJECT: Evaluating Reduction in Recruitment (RIR) Requests in an
Environment of Increased Layoffs
Background: GAL 01-97, change #1, states that among the factors to be
considered by the Certifying Officer in making determinations on RIRs
are:
Adequacy of the recruitment conducted by the employer applicant, e.g.,
newspaper advertising, job fairs, Internet;
Availability of U.S. workers for the occupation involved in the
employer's application...
Issue: Recognizing that labor shortages and surpluses vary by regions
and states, for purposes of consistency in applying GAL 01-97, change
#1, clarification has been requested regarding additional procedures
that should be followed by Regional Certifying Officers (CO's) on
evaluating RIR requests when available information indicates that
there may have been layoffs in the occupation by the employer or
layoffs in the occupation in the area of intended employment.
In an effort to provide more definitive guidance, the following
standard operating procedures should be followed in the evaluation RIR
requests:
1. Criteria for Evaluating RIR Applications:
A. U.S. Worker Availability: In determining whether an RIR should be
permitted the CO should assess the availability of U.S. workers. In
making that assessment the CO shall:
· Consider recent regional office experience in processing non-RIR
cases involving occupations similar to those for which the employer is
requesting RIR. E.g., did a market test for similar occupations in the
area of intended employment produce qualified U.S. worker(s) for those
occupations?
· Contact State agencies to obtain information on the labor market.
Such information may be based, for example, on the State's recent
experience in processing cases involving occupations involved in the
employer's application, type of workers registered for unemployment
benefits, type of workers registered in the states' job bank, or
current labor market studies available from the state labor market
information unit.
· Review current relevant articles that may have appeared within the
last 6 months in newspapers, trade or professional journals concerning
the availability of workers in the occupation in the area of intended
employment.
If, after evaluating all of the information obtained the CO is
confident qualified U.S. workers may be available for the occupation
involved in the RIR, the RIR request should be denied and returned to
the state agency for further processing.
B. Establishment of Pattern of Recruitment: The recent change in the
economy should not change the established policy set-forth in GAL
01-97, change #1, regarding what is required of an employer applicant
to show evidence of a pattern of recruitment for RIR purposes.
Specifically, once it has been determined that RIR processing is
appropriate for the area of intended employment and the occupation;
CO's are reminded that the following, and not more, are required:
- one print advertisement in a newspaper of general circulation or
a relevant journal, plus
- enough other activities to show evidence that a pattern of
recruitment has been completed to adequately test the labor market
for the occupation of the subject application. These may include a
combination of:
job order with the state workforce agency
internal company recruitment activities
company and commercial internet web page ads
Community, college or other job fairs
private employment agency
additional print advertisements
In order to clarify the intent of GAL 1-97, Change 1's statement
regarding state priority in processing denied RIRs, it is ETA policy
that when an RIR is denied the application shall be returned to the
SWA for regular processing in the order of the application's priority
date.
2. Layoffs in the Employer-Applicant Firm: If the CO has reason to
believe that the employer-applicant firm may have, subsequent to
testing the labor market, laid off any workers within the last 6
months, a letter should be sent to the employer-applicant. CO's should
state their understanding that the employer has laid off workers who
may qualify for the occupation involved in its application and the
following information is needed before a determination can be made on
the application:
- Within the last 6 months has the [insert name of employer] laid
off any workers in the occupation of [insert name of the
occupation involved in the application and its DOT code]? If yes,
provide the information requested below.
Provide the number of workers that were laid off from the
occupation of [insert name of the occupation involved in the
application and its DOT code]?
Provide documentation, by geographic area and worker, of the
consideration given to the laid off workers for the position for
which certification is sought. If any U.S. workers were rejected
for the position for which certification is sought, the employer
must provide the lawful job related reasons for each worker
rejected.
- If the employer responds satisfactorily to the above inquiry
concerning the number of workers, the application should be
certified.
- If the employer declines to provide the requested information
and/or documentation or otherwise does not respond satisfactorily
to the letter requesting information about the number of workers
laid off and the consideration given to them, a Notice of Findings
should be sent to the employer. This will notify the employer of
the intention to deny the application if the employer does not
respond satisfactorily to the request about the number of workers
it laid off and does not satisfactorily document the consideration
given to the workers that were laid off, including the lawful
job-related reasons for each U.S. worker that was rejected.
3. General Layoffs in the Industry or Occupation in the Area of
Intended Employment After Filing the Application: If the
Certifying Officer has reason to believe that there have been
layoffs by other employers that may involve the occupation
involved in the employer-applicant's application subsequent to the
test of the labor market, the Certifying Officer should provide
the employer with the option of publishing one additional
advertisement consistent with the ad provided in the original RIR
application, or requesting that the application be remanded to the
state for regular processing. If the employer chooses to run the
additional ad, the employer will be instructed that, after
allowing a minimum of two weeks for U.S. workers to respond, the
employer is to submit a written result of this recruitment effort.
This report is to be consistent in form with recruitment results
provided in the RIR application. Based on the recruitment results,
the CO should approve or deny the RIR, or issue a NOF, as
appropriate.
4. Layoffs by the Employer-Applicant Firm, and General Layoffs in
the Industry or Occupation in the area of intended employment: If
the Certifying Officer has reason to believe that there have been
layoffs by the employer-applicant and additionally other employers
in the area have laid off workers in the occupation involved in
the employer-applicant's application, the Certifying Officer
should obtain information on the possible availability of
qualified U.S. workers.
- The procedures outlined in 2 and 3 above should be followed.
Necessary Action: Certifying Officers advise staff processing RIR
requests to implement the standard operating procedures outlined
above immediately.
Should you have any questions contact Pat Stange or me.
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