Job Requirements and Interviews in Labor Certification Cases
By James A. Bach, Esq.*
Copyright 2009 - 2021
*Certified Specialist in Immigration and Nationality Law, State Bar of California Board of Legal Specialization
A labor certification is a determination by the Department of Labor (DOL) that there is a shortage of American workers for a particular job. It is based on the unsuccessful recruitment of U.S. workers.
Like your tax return, a labor certification application is processed on a "post-audit" basis. That is, it may be approved (just like your tax refund is issued), but the DOL can audit and disallow the labor certification at any time within five years of the approval.
Many labor certification applications are also audited before approval. Two major areas of inquiry in both pre- and post-approval audits are 1) whether the minimum job requirements are excessive, and 2) whether U.S. workers were improperly rejected.
Minimum Job Requirements
The minimum job requirements will be used to determine if any of the applicants who respond to the required recruitment are qualified for the job to be certified. Because the minimum requirements can be used as a basis for rejecting U.S. workers, they are subject to particular scrutiny by the DOL. In addition, there have been many administrative appellate decisions that discuss whether specific job requirements are justifiable.
There are many aspects to the DOL consideration of the minimum job requirements, including the following:
Each requirement be justified in terms of "business necessity." "Business necessity" essentially requires that the required background is necessary in order for an employee to adequately perform the job duties.
The requirements cannot be "tailored" to the immigrant’s background, but must reflect the company's actual, normal minimum requirements for the job.
There should be consistency with past labor certification applications for the same position.
Minimum requirements cannot include skills that can be learned after a short period of on-the-job training.
The requirements cannot be subjective, but must provide an objective measure that can be applied to the job applicants who respond to the recruitment. A requirement like "good communication skills" would not be acceptable.
Only the most important skills can be included as minimum requirements. The DOL will normally reject a long list of technical requirements.
An ability to speak a foreign language is almost never acceptable. However, there may be an exception where the employee will speak that language most of the time, or where there are safety reasons for the language (such as to provide safety training to other employees who do not speak English).
The employer must certify that it has not previously hired workers for a comparable position with less education and experience.
In most cases, the sponsored immigrant must also be able to prove that her or she met each of the minimum requirements before starting the job to be certified. Ordinarily that proof consists of letters from former employers and college transcripts. Proof that the immigrant meets the minimum requirements must be gathered before filing the labor certification, and ideally before starting the recruitment. Otherwise the employer runs the risk of wasting time and money to get a labor certification that cannot be turned into a green card because the employee cannot get proof of required prior experience.
Much of a proper analysis of the minimum requirements comes down to common sense. The DOL will attempt to determine whether the requirements are reasonable, or whether they are fabricated solely to prove that only the present employee is qualified.
Rejecting Job Applicants
The minimum requirements will be applied to potential candidates who respond to the ads to determine whether they are qualified. However, they are not the only measure whether they are qualified. The regulations permit rejection of candidates for "lawful job related reasons". In addition to failure to meet the minimum (and justifiable) job requirements, the following reasons may be sufficient to reject a candidate:
The candidate does not have a permanent right to remain in the U.S. That would include those who have the temporary right to work in a nonimmigrant status such as F-1, H-1B, or L-1 status. It would also include those who are out of status, or who have applied for but have not been granted a permanent status. Only U.S. citizens, permanent residents, political asylees, and refugees need be considered. Everyone else can be summarily rejected, without inquiry into whether or not they are qualified to do the job. That should therefore be the first question asked. To avoid potential liability for discrimination, the form of the question should be, "Do you have the right to work permanently in the United States?"
The applicant is no longer interested in the job after finding out more about it. However, employers must be careful about discouraging qualified U.S. workers.
The applicant wants a higher salary than that offered. However, the employer cannot assume that the applicant will not accept the salary offered simply because he or she has commanded a higher salary in the past, or has qualifications that exceed the minimum requirements. The applicant should be asked, "Would you accept the job at this salary?"
The applicant cannot produce adequate references (if the employer normally requires references), or cannot pass a drug test (if the employer normally conducts drug tests).
The applicant has a criminal background, or has been fired for poor performance.
There may be other lawful reasons for rejecting a candidate, and those must be determined on a case-by-case basis. Essentially, the recruitment must be conducted in good faith. That means that all applicants must be considered, and cannot be rejected unfairly. All interviews and other interaction with the applicants should be conducted with the expectation that the DOL will contact the applicant to find out if he or she was fairly considered for the position, and not discouraged from accepting the job.
Generally, all applicants should be interviewed. If they are not interviewed the DOL may conclude that they were not fairly considered. Interviews do not have to be conducted in person, but can be by telephone. The interviews do not have to be long, and often can be just minute or two (for example, long enough to determine that the applicant does not have the right to work permanently in the U.S.). It is usually not proper to reject a candidate based on the résumé alone. The DOL assumes that the résumé may not include all of the background and qualifications of the candidate. However, in some circumstances, such as where it is clear that the candidate does not have a required college degree, or lacks sufficient experience, a determination can be made without an interview. Notes should be kept of the time, date and content of the interviews.
Good faith recruitment also involves contacting applicants as soon as possible, ideally within a day or two of receiving the résumé or letter of application. The labor certification can be denied if a qualified applicant is not contacted quickly, because it is unreasonable for a job applicant to wait several weeks for a response. They will assume that the job is no longer available, and may seek other opportunities.
If the applicant cannot be reached by telephone or email, a letter should be send to the address on the résumé as soon as possible by certified mail. That letter should provide a telephone number, times and days to call, and ask the applicant to telephone.
Labor certifications are most commonly denied because the job requirements are too restrictive, or because job applicants are unfairly rejected. Care is required to ensure that the job requirements are reasonable and ordinary, and that the applicants are properly considered. Just like your tax return, a labor certification should be prepared as though it is certain to be audited, and applicants should be interviewed as though it is certain that the DOL will contact them.
Copyright 2009 - 2021