An employer must show that U.S. applicants were rejected
solely for lawful job-related reasons. 20 C.F.R.
§ 656.21(b)(7). Furthermore, the job opportunity must have
been open to any qualified U.S. worker. 20 C.F.R.
§ 656.20(c)(8). Therefore, an employer must take steps to
ensure that it has obtained lawful job-related reasons for
rejecting U.S. applicants, and not stop short of fully
investigating an applicant's qualifications.
Although the regulations do not explicitly state a
"good faith" requirement in regard to post-filing
recruitment, such a good faith requirement is implicit. H.C.
LaMarche Enterprises, Inc., 87-INA-607 (Oct. 27, 1988).
Actions by the employer which indicate a lack of a good faith
recruitment effort, or actions which prevent qualified U.S.
workers from further pursuing their applications, are thus a
basis for denying certification. In such circumstances, the
employer has not proven that there are not sufficient United
States workers who are "able, willing, qualified and
available" to perform the work. 20 C.F.R. § 656.1.
Scope: This chapter covers the contact and interviewing of
applicants portion of the recruitment process. As to earlier
portions of the process, and readvertisement, see Chapter
22 (Recruitment Efforts).
An employer must make efforts to contact qualified U.S.
applicants in a timely fashion after the receipt of resumes from
the state job service agency. Failure to
timely contact the U.S. applicants indicates a failure to recruit
in good faith. Loma Linda Foods, Inc., 89-INA-289 (Nov.
26, 1991) (en banc).
An employer must contact potentially qualified U.S.
applicants as soon as possible after it receives resumes or
applications, so that the applicants will know that the job is
clearly open to them. During the recruitment period, the employer
must review applicants, weigh these findings and report to the
job service. The "as soon as possible" standard does
not embody a specific time limit. It turns on how long an
employer requires for a reasonable examination of the applicants'
credentials, including but not limited to the follow factors: (a)
whether the position requires extensive or minimal credentials;
(b) whether recruitment is local; and (c) whether many or only a
few persons applied for the position. Loma Linda Foods,
Inc., 89-INA-289 (Nov. 26, 1991) (en banc).
SeealsoFlamingo Electroplating, Inc.,
90-INA-495 (Dec. 23, 1991) (stating in dicta that "an
employer is required to communicate with potentially qualified
domestic applicants as soon as possible -that is, promptly after
only enough time for a reasonable examination of the application
-- after receiving their applications.").
An unjustified delay in contacting the U.S. applicants, when
it was feasible to contact the applicants earlier, is presumed to
contribute to an applicant's unavailability. Creative Cabinet
and Store Fixture, 89-INA-181 (Jan. 24, 1990) (en
banc).
In Creative Cabinet and Store Fixture, 89-INA-181
(Jan. 24, 1990) (en banc), a delay of up to one month
occurred between the receipt of a resume and contact with the
applicant, causing the Board to presume "that the delay by
the Employer is designed to discourage U.S. applicants, in
violation of § 656.21(b)(7)."
Arguably, the Board has retreated from focusing on a
presumption of an intent to discourage. In Loma Linda Foods,
Inc., 89-INA-289 (Nov. 26, 1991) (en banc), the Board
stated:
In legal parlance, an employer who makes timely
contact is acting in good faith. However, it is important
not to become lost in "good faith" jargon, which
easily disintegrates into an analysis of the intent
underlying an employer's delay. The proper focus is not on
the employer's intent, but on the probable effect on U.S.
applicants of the passage of time.
Butsee the dissent of Judges Guill and Litt in
Loma Linda, which, although agreeing that the focus is on
whether the delay had a chilling effect on applicants, noted that
under Creative Cabinet and Store Fixture, 89-INA-181 (Jan.
24, 1990) (en banc), the source of the timely contact
requirement is a presumed intent to discourage applicants
(seesupra Division II, A, 3); ergo, an employer's
intent should be considered when determining whether that
presumption is rebutted. Butseealso the
dissent of Judge De Gregorio in Loma Linda: "The
employer's intent which the Board dismisses as irrelevant I take
to be the entire subject matter of a § 656.20(c)(8)
certification."
An employer's compliance with the forty-five day deadline
imposed by a job service for completing all recruitment steps and
filing a recruitment report does not satisfy the requirement of
timely contact. Loma Linda Foods, Inc., 89-INA-289 (Nov.
26, 1991) (en banc); Creative Cabinet and Store
Fixture, 89-INA-181 (Jan. 24, 1990) (en banc).
SeealsoRancho Liquor, 90-INA-520 (Dec. 3,
1991); Klausner Transportation Co., 90-INA-46 (Apr. 29,
1991).
An employer may avoid the implications of an untimely
contact where it provides a reasonable justification for the
delay (the remedy being a remand for new recruitment), or a
legitimate excuse showing that it did not contribute to the delay
(the remedy being the grant of certification), or a combination
of reasonable justifications and excuses. Loma Linda Foods,
Inc., 89-INA-289 (Nov. 26, 1991) (en banc).
A justification is a factor outside the normal recruitment
process, but within the employer's responsibility or control,
which reasonably prevented the employer from contacting
applicants as soon as possible. The interference may arise from
either personal or professional matters; however, to justify a
delay, the employer must show that it handled the outside
interference reasonably. Loma Linda Foods, Inc.,
89-INA-289 (Nov. 26, 1991) (en banc).
Evaluating the reasonableness of an employer's justification
involves several considerations, including but not limited
to:
Could the employer have reasonably anticipated the
interference with recruitment?
Was the interference reasonably avoidable?
Did the employer make reasonable attempts to mitigate
the impact of the interference?
Did the employer prioritize its competing obligations
reasonably?
If an employer offers more than one justification for its delay,
the cumulative effect of the alleged interference may be
considered. Id
An excuse is a factor caused by the job service or the CO,
which in turn solely caused the delay. If the job service or CO
contributed to the delay, but the employer also contributed to
the delay, certification must be denied unless a reasonable
justification is established. Loma Linda Foods, Inc.,
89-INA-289 (Nov. 26, 1991) (en banc).
A holiday period may be considered an "excuse"
which could augment the pre-contact period by the number of days
reasonably affected by the holiday. An employer's personal
vacations do not provide an excuse because they can be scheduled
and controlled. Id.
In the following cases labor certification was denied
because the employer delayed contact of applicants and did not
proffer an excuse or justification for the delay.
Rancho Liquor, 90-INA-520 (Dec. 3, 1991) (delay
of 21 days is too long to review seven resumes and contact
four applicants).
King Ice Enterprises, Ltd., 90-INA-214 (Sept.
12, 1991) (seven weeks, no justification).
Hydromach, 89-INA-329 (Aug. 15, 1990) (30-day
delay, no explanation).
The Velvet Turtle, 89-INA-57 (May 29, 1990)
(five-week delay, no explanation).
Benjamin Builders, Inc., 89-INA-69 (Mar. 15,
1990) (six-week delay, no justification).
Trussway-Fort Worth, 88-INA-163 (Mar. 12, 1990)
(six-week delay, no justification).
Shaw's Crab House, 89-INA-139 (Jan. 3, 1990)
(contact ten days after end of rebuttal period).
Foster Electrical Service, Inc., 88-INA-284
(June 30, 1989) (delay of over a month in accepting
referrals of apparently qualified applicants resulted in an
untimely contact of U.S. applicants).
In the following cases, labor certification was denied
because the employer delayed contact and failed to provide an
adequate justification or excuse for the delay. Justifications
and excuses rejected under the facts of these cases included
increased duties of the interviewer, an intervening holiday, lost
resumes, the job service's delay in forwarding the resumes,
absence of the interviewer, and a limitation of interviewing
resources.
The employer failed to justify its delay where it
failed to demonstrate that its interviewer, the Vice
President for Finance, had attempted to mitigate the impact
of a three and one-half week absence; that the Vice
President was the only qualified, responsible interviewer;
or that it attempted to mitigate the impact of the Vice
President's increased duties following an extended absence
occasioned by the death of his father and following a
corporate reorganization. Regular duties could not justify a
delay in contacting applicants, and the employer apparently
placed a low priority on its recruitment since it admitted
that it may have been able to contact the applicants sooner.
An intervening Thanksgiving holiday possibly excused three
days of delay, which was not enough to prevent a finding of
unreasonable delay. Loma Linda Foods, Inc.,
89-INA-289 (Nov. 26, 1991) (en banc) (seven-week
delay for some applicants, four-week delay for other
applicants).
I and E Electric, 90-INA-252 (July 22, 1991)
(more than 30 days; fact that the state job service took
three weeks did not excuse the employer from making contact
after that point of referral).
OKO Corporation, 90-INA-196 (May 16, 1991) (no
contact with applicants, not justified because the employer
allegedly lost the resumes and did not attempt to obtain the
resumes or request an extension of time or re-recruit).
Larry Christie, Contractor, 90-INA-135 (Apr.
29, 1991) (40-day delay, assertion that the employer was out
of the state for one month was insufficient reason for
delay).
Naegle Associates, Inc., 88-INA-504 (May 23,
1990) (one-month delay in initial contact, and two weeks
more to follow-up on applicant's inquiry; undocumented
assertion of "limited resources").
Garden Crest Convalescent Hospital, 88-INA-502
(Apr. 19, 1990) (one-month delay, assertion of misplaced
resume was not convincing).
As to the defense that a later contact of an applicant
revealed that he or she would not have taken the job even if it
had been timely offered, or was not qualified for the job,
seeinfra Division VI.
When the time period between contact and the receipt of the
resumes is not too long, or when there is a reason for the delay
in contact, the Board has held the delay did not indicate a lack
of good faith in recruitment. It should be noted, however, that
each of these cases was decided prior to the Board's en banc
consideration of the issue in Loma Linda Foods, Inc.,
89-INA-289 (Nov. 26, 1991) (en banc).
Lee & Chiu Design Group, 88-INA-328 (Dec.
20, 1988) (en banc) (16 to 20 day delay insufficient
standing alone to establish lack of good faith under the
facts of this case).
Hina Textiles, Inc., 90-INA-82 (July 15, 1991)
(the employer received many applicants' names from the state
service, without phone numbers or addresses; the employer
timely contacted the qualified applicants who called the
employer; no untimely contact established).
National Industries for the Severely Handicapped,
Inc., 88-INA-388 (Feb. 13, 1990) (two to three week
delay).
Dai West, Inc., 88-INA-443 (Sept. 8, 1989) (two
to four week delay permissible under facts of case).
Jacob's Engineering Group, Inc., 88-INA-367
(July 17, 1989) (more than one month's delay permissible,
due to problems with transmission of resumes, the retirement
of the employer's vice president of personnel, and the
intervening holiday season).
Hoover Electric Co., 88-INA-315 (June 6, 1989)
(two-week delay).
Those seeking professional or nonlocal positions may
reasonably expect a longer time to pass before an employer
initiates contact than those seeking nonprofessional or local
positions, so a longer period before contact will not deter them
from pursuing the job opportunity. But, even where a longer
pre-contact period may be reasonable, an
employer who exceeds that lengthier time will face the denial of
certification. Loma Linda Foods, Inc., 89-INA-289 (Nov.
26, 1991) (en banc), citing Naegle Associates,
Inc., 88-INA-163 (May 23, 1990) and Trussway-Fort
Worth, 88-INA-163 (Mar. 12, 1990) as cases in which
pre-contact recruitment took too long even though professional
positions were involved.
SeealsoIronclad Inc., 88-INA-477
(Feb. 12, 1990) (1-1-1 split decision) (lead opinion: "[I]n
light of the professional nature of the position, we note time is
not quite of the essence, as it might be with a position
requiring little or no education or experience. . . For the
position at issue, industry practices, including advertisement in
a professional journal, necessarily require a longer recruitment
and interview period").
SeealsoCreative Cabinet and Store
Fixture, 89-INA-181 (Jan. 24, 1990) (en banc), noting
that the job in question did not involve a professional position,
non-local recruitment, or the processing of a large number of
resumes.
A failure to contact applicants at all is essentially
considered an untimely contact. Where the employer does not prove
that it had no access to addresses or telephone numbers of
applicants, the employer cannot refuse to contact applicants
because those applicants did not contact the employer after
referral from the state agency. Norwins Corp., 90-INA-246
(Sept. 19, 1991). However, where the employer never received
certain applicants' addresses or telephone numbers (and
apparently attempted to obtain them from the state service), a
panel held that the employer properly contacted only those
applicants who contacted the employer. Hina Textiles,
Inc., 90-INA-82 (July 15, 1991).
SeealsoFlamingo Electroplating, Inc.,
90-INA-495 (Dec. 23, 1991) (no contact); Galletti Brothers
Food, 90-INA-511 to 90-INA-516, 90-INA-531 to 90-INA-566
(Apr. 30, 1991) (no contact with applicant, evidence submitted
after FD not considered); Moore's Barbecue House, Inc.,
89-INA-308 (Jan. 15, 1991) (no contact).
SeealsoSimon's Precision Machine,
88-INA-105 (July 31, 1989), discussed infra Division IV,
B, 2, indicating that it may be permissible to put the burden on
applicants to respond.
Where a U.S. applicant's resume reveals that he or she
clearly lacks the minimum specified job requirements, that
applicant may be rejected without an interview, ENY Textiles,
Inc., 87-INA-641 (Jan. 22, 1988), at least in the absence of
additional relevant information from other sources or a
reasonable request by the CO that the applicant be interviewed.
SeeAnonymous Management, 87-INA-672 (Sept. 8,
1988) (en banc) (applicant did not have qualifying
experience); Fluid Dynamics International, 88-INA-497
(Feb. 7, 1990) (applicant clearly lacked job requirements of
having a patent or publication); Saffell and McAdam,
88-INA-455 (June 12, 1989) (lacked required experience).
HOWEVER: These cases are disapproved to the extent they
would shift the burden from the employer to the U.S. applicant or
the CO, and are contrary to the obligation to further investigate
an applicant's credentials where that applicant's resume
indicates a broad range of experience, education and training
such that it is reasonably possible that he or she is qualified
for the job. SeeGorchev & Gorchev Graphic
Design, 89-INA-118 (Nov. 29, 1990) (en banc), and
infra Division III, B.
Although a resume is only a summary of accomplishments, when
applying for a job in a particular field, an applicant would
invariably list career highlights such as publications or
patents. Fluid Dynamics International, 88-INA-497 (Feb. 7,
1990) (applicant clearly lacked job requirements of having a
patent or publication where such accomplishments were not stated
in the resume).
Butsee the cases discussed infra Division
B, 2, which indicate that a broad range of qualifying experience
indicates that the applicant may meet the job requirements, and
imposes the obligation on the employer to investigate the
applicant's credentials.
Where an applicant's resume shows a broad range of
experience, education, and training that raises a reasonable
possibility that the applicant is qualified, although the resume
does not expressly state that he or she meets all the job
requirements, an employer bears the burden of further
investigating the applicant's credentials. Nancy, Ltd.,
88-INA-358 (Apr. 27, 1989) (en banc), rev'dNancy Ltd. v. Dole, Case No. 89-2257-CIV-Scott (S.D. Fla.
Aug. 8, 1990) (adopting Magistrate's recommendation). In
Gorchev & Gorchev Graphic Design, 89-INA-118 (Nov. 29,
1990) (en banc), the Board found that although
Nancy was reversed by the United States District Court for
the Southern District of Florida, the Court did not address the
validity of the policy guideline stated in Nancy. Thus,
the Board reaffirmed the principle that seemingly qualified
applicants' credentials must be investigated (by an interview or
otherwise) to determine whether the applicant
applicant meets all of the requirements.
To the same effect, Hambrecht Terrel International,
90-INA-358 (Dec. 11, 1991); Nationwide Baby Shops, Inc.,
90-INA-286 (Oct. 31, 1991); I & N Consulting
Engineers, 90-INA-239 (July 31, 1991); The First Boston
Corp., 90-INA-59 (June 28, 1991).
A broad range of qualifying experience indicates that the
applicant may meet the job requirements. The fact that a resume
does not list all of the requirements for the position does not
excuse the employer's failure to contact the applicants, if the
resumes raise the reasonable possibility that the applicants are
qualified. GE Aircraft Engines, 89-INA-12, 14 & 16
(Apr. 20, 1990).
ButseeFluid Dynamics International,
88-INA-497 (Feb. 7, 1990), discussed supra Division A, 2,
which indicates that certain major accomplishments could be
expected to be included in a resume.
An employer who fails to investigate the credentials of a
U.S. applicant whose work experience appears to be of the type or
quality required by the job faces the denial of certification.
For example:
Liaison Center of the General Chamber of Commerce
of the Republic of China, 90-INA-140 (Apr. 29, 1991)
(assuming arguendo that the U.S. applicant's six years of
experience as a secretary/editor for a Taiwan-based English
journal was not, on its face, sufficient to establish the
one-year experience requirement as an "English/Chinese
Secretary," the applicant's resume clearly showed a
broad range of experience, education and training for the
job offered).
Norwest Bank of Minneapolis, 87-INA-658 (Apr.
13, 1988) (bank unlawfully rejected U.S. applicant for
position of Vice-President for debt restructuring in Latin
America, despite his avowed experience in that region;
employer not permitted to assume, without further contact,
that applicant's experience was nonqualifying simply because
it was gained in a period when little debt restructuring was
conducted in Latin America).
Factor's Famous Deli, 88-INA-173 (Mar. 23,
1990) (fact that applicant had experience as a cook in a
country club, and not in a restaurant, does not negate fact
that applicant should have been interviewed).
Similarly, an employer must investigate the credentials of an
applicant who has an educational degree similar to the degree
required for the job. For example:
Clinical Veterinary Laboratory, 90-INA-28 (Jan.
2, 1991) (where the employer reduced the minimum education
and experience requirement to an A.A. degree as a Clinical
Lab Technician or two years of experience, a U.S.
applicant's credentials should have been investigated,
because the title of his degree was very similar to the
degree listed in the application).
Failure to investigate an apparently qualified applicant is one
of the most frequently cited ground for the denial of labor
certification. See, e.g., Mindcraft Software,
Inc., 90-INA-328 (Oct. 2, 1991); Slattery Associates,
Inc., 90-INA-222 (Sept. 17, 1991); Peter Blond (USA),
Inc., 90-INA-229 (July 31, 1991); Hina Textiles, Inc.,
90-INA-82 (July 15, 1991); Klausner Transportation Co.,
90-INA-46 (Apr. 29, 1991); ASEC Janitorial Cooperative,
Inc., 90-INA-169 (Mar. 27, 1991); U.S.S. Photo,
90-INA-11 (Mar. 7, 1991); Myrtle Grocery, Inc., 90-INA-16
(Dec. 11, 1990); Hopewell Co., 89-INA-190 (May 23, 1990);
Mississippi Valley Trading Co., Inc., 89-INA-225 (May 3,
1990); Minnesota House of Representatives Research
Department, 89-INA-163 (Mar. 8, 1990); Entron Enterprises,
Inc., 89-INA-132 (Feb. 27, 1990); Trans Global Sports
Company, 88-INA-549 (Jan. 31, 1990); Jones & Erickson
Software Technology, Inc., 88-INA-544 (Jan. 4, 1990);
Cardware, Inc., 89-INA-142 (Nov. 27, 1989); Dai West,
Inc., 88-INA-443 (Sept. 8, 1989).
Citing Gorchev & Gorchev Graphic Design,
89-INA-118 (Nov. 29, 1990) (en banc), a panel affirmed the denial
of labor certification where the employer failed to interview a
seemingly qualified U.S. applicant. The panel noted that the
applicant had "experience as a custodian manager, one year
of education in a building maintenance trade school, an
incinerator operator's license and an oil burner
certificate" which could reasonably afford him the
qualifications needed for the petitioned position of building
supervisor. Marie J. Mohammed, 91-INA-255 (July 17, 1992);
see also, Hebrew Hospital for Chronic Sick, Inc., 93-INA-
66 (Apr. 12, 1994); Romans Garment Industries, Inc., 93-
INA-40 (Sept. 30, 1993) (certification properly denied where
applicants appear to possess the necessary qualifications for the
job based on their resumes and employer failed to substantiate
allegation that applicants were unqualified by interviewing
them); American Express Information Services Co., 93-INA-2
(Nov. 23, 1993); Mac III Construction, 92-INA-424 (Nov.
29, 1993) (fact that applicant s resume did not list each and
every minimum requirement not basis for rejection without an
interview); Sargent Garcia s, 92-INA-416 (Nov. 1, 1993)
(employer advertised for restaurant management position and
cannot subsequently reject apparently qualified U.S. applicants
for lack of waiting experience based on their resumes without
substantiating actual experience); Family Dental Center
Service Company of America, 92-INA-309 (Nov. 15, 1993)
(certification properly denied where employer did not pursue
applicant despite fact that resume showed required degree,
license, continuing education training, and 25 years experience
for the position).
The full Board analyzed an employer s requirements under the
Gorchev and Gorchev Graphic Design standard in Dearborn
Public Schools, 91-INA-222 (Dec. 7, 1993) (en banc).
In that case the Board concluded that because of the wide and
diverse experience listed on the U.S. applicant s resume, the
employer was obligated to further investigate the applicant s
credentials. The Board noted that a resume is just that: a
summary; an introductory overview highlighting an applicant s
background o qualifications and, considering the applicant s
background as revealed by her resume, the onus was upon employer
to further investigate the applicants experience. See also,
Eckstein Associates, 93-INA-134 (Mar. 31, 1994) (citing
Dearborn). But see, Quality Inn Rainbow Bridge at the
Falls, 93-INA-7 (April 6, 1994) (applying Gorchev
despite concession that applicant did not possess 2 years college
requirement).
Where a resume does not clearly show whether the candidate
meets one of the "detailed subsidiary requirements,"
the employer is obligated to investigate the applicant's
credentials further. Gorchev & Gorchev Graphic Design,
89-INA-118 (Nov. 29, 1990) (en banc).
In Gorchev & Gorchev, a graphic design studio
sought to hire an Art Director possessing a graphics arts degree
and specified experience. In addition, the employer required that
applicants be familiar with specialized photo art direction and
special effects photography. One applicant's resume indicated
that he possessed the requisite degree and experience but was
silent on the requirement of special photography techniques. The
employer rejected this applicant, concluding that he was not
qualified from the face of his resume. On rebuttal to the NOF,
the employer also submitted the opinion of a professor from the
Rhode Island School of Design that the applicant's resume clearly
showed a lack of qualifications for the job.
The panel held that even if a resume is silent on a detailed
requirement, an employer may not find the applicant not qualified
solely on the resume, where there exists a reasonable possibility
that the applicant meets the special requirement and where
information regarding the applicant's qualifications is easily
obtained. The Board's holding was affirmed en banc, with a note
that the expert's opinions in Gorchev did not address
whether the applicant should have been contacted to see if he was
qualified, but addressed whether a person without such
qualifications could do the job duties. The Board also noted that
other applicants' resumes lacked the requirement which the
applicant at issue also lacked, but the employer interviewed
those other applicants. The Board explained that the employer
unlawfully rejected a U.S. applicant who, according to the
employer's own scorecard submitted in rebuttal, met more of the
specified requirements than applicants who were interviewed.
Seealso:
Brigham Young University, 89-INA-239 (Aug. 15,
1990) (resume showed the required doctorate and a
comprehensive range of experience in the required coal
combustion and gasification systems analysis and work with
lasers, but did not address the specific detailed
requirement of laser diagnostic work; employer should have
investigated credentials).
Microbilt Corp., 87-INA-635 (Jan. 12, 1988) (if
applicants meet the job requirements, but do not have
experience in specific areas of job description, this raises
the possibility that they may be qualified and thus should
be interviewed).