Department of Labor Guidance Bulletin
- Good Faith Recruitment Best Practices -
C. Matthew Schulz
650.856.5528
matthew.schulz@bakernet.com
New information from the US Department of Labor provides guidance to employers and their attorneys on best practices for conducting the good faith recruitment required for alien employment certification.
Alien employment certification is a requirement for most, but not all, employment-based immigration to the US. Before the employer can petition to the US Citizenship and Immigration Services for the foreign national to immigrate to the US, the DOL must certify that there are no qualified US workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment and that employment of the alien will not adversely affect the wages and working conditions of similarly employed US workers.
The employer must recruit under standards set by DOL regulations. The employer is required to prepare a recruitment report that categorizes the lawful, job-related reasons for the rejection of job applicants, if any.
The DOL's new Guidance Bulletin states that the good faith recruitment required for certification "requires that an employer's process for considering U.S. workers who respond to certification-related recruitment closely resembles the employer's normal consideration process."
The Guidance Bulletin acknowledges the role of attorneys representing employers on certification applications to perform the analyses necessary to counsel clients on legal questions, including the advice needed to ensure that an employer's reasons to reject a job applicant are lawful.
But attorneys are generally excluded by the DOL from conducting any preliminary screening of job applications and interviewing of job applicants who are US workers. The sole exception is where the attorney is the representative of the employer who normally performs this function for positions for which certification applications are not filed.
Attorneys are prohibited from withholding any job applications received from US workers and cannot seek to dissuade an employer from determining that an applicant is qualified, able, willing and available for the job offered, according to the Guidance Bulletin.
This guidance is generally consistent with the DOL regulations that have been in effect since 2004, but is more detailed and provides clarification not provided previously.
The Guidance Bulletin was published in the midst of an ongoing DOL audit of all alien employment certification applications filed by one national immigration boutique firm. The DOL Information Paper explains that audit was prompted when the DOL "identified information indicating that in at least some cases the firm may have improperly instructed clients who filed ... applications to contact their attorney before hiring apparently qualified U.S. workers."
Audits of individual cases are routine by the DOL. As of May 31, 2008, the DOL reported 44% of its active cases were audit cases. Individual audits always delay processing, but usually only by a few months. Here the DOL states that it is auditing all cases filed by a national law firm. An audit of this magnitude is unprecedented and seems likely to take much longer to complete - especially given how much publicity the DOL has brought to the investigation.
In a best case scenario, the immigration of many foreign professionals employed at companies represented by the law firm under investigation will be delayed. This could impact their ongoing eligibility to live and work in the US, because of the inter-relationship of the temporary and immigrant visas often used. Employers impacted by the audit are well advised to review their recruitment records carefully with the hindsight provided by the Guidance Bulletin, as well as evaluate the impact the audit will have on their workforce. There are a number of solutions available, but a case-by-case analysis is needed to determine the best strategy.
The complete text of the Guidance Bulletin is attached, as is a DOL Information paper and link to the DOL web site and their News Release, at the Quick Links and Related documents sections in the left column.