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March 20, 2002
MEMORANDUM FOR: REGIONAL CERTIFYING
OFFICERS
FROM:
DALE M. ZIEGLER /s/
Chief
Division of Foreign Labor Certification
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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