The CO is not bound by any statements or actions by the
local employment service in his or her review of the
application.
Peking Gourmet, 88-INA-323 (May 11, 1989)
(argument rejected that the employer had properly refused to
readvertise in a different publication as directed by the CO
since it had advertised in a publication as advised by the
local employment service).
Aeronautical Marketing Corp., 88-INA-143 (Aug.
4, 1988) (CO not bound by the local employment service's
finding that the wage offer was within regulatory
guidelines).
Seealso Chapter 18, IV, D (Prevailing
Wage) in regard to the impact of a local employment
service's prevailing wage determination on the CO's review
of the application.
Thus, an employer's reliance on erroneous information supplied by
the local employment service does not estop the CO from denying
certification.
Inner City Drywall Corp., 90-INA-192 (June 24,
1991) (CO not estopped from denying the binding effect of an
initial recruitment which was advertised at an erroneously
low prevailing wage and which netted no applicants).
Moreover, an employer's technical compliance with the regulations
and blamelessness in the local employment service's erroneous
instructions does not compel the granting of
labor certification where the error can be corrected.
SeeBob's Exxon, 89-INA-259 (May 2,
1991) (where the local employment service had forwarded only
three of forty applications, the CO was not bound to grant a
waiver from Schedule B because of the employer's technical
compliance with the regulations and apparent blamelessness
in the inadequate referral; the CO correctly found that an
adequate test of the labor market had not been achieved and
correctly afforded the employer the opportunity to repost
the job with the state agency).
Where the CO in effect notified the state employment
office to direct employer to undertake a new recruitment, and
employer does this as directed but no U.S. applicants apply, the
CO cannot at that point "change his mind after the employer
is induced to abandon its disagreement with the CO in order to
attempt to promptly obtain certification by engaging in a new
recruitment effort." Here the CO maintained that the new
recruitment advised by the state agency had no binding effect on
its own determination. Prima Royale Enterprises, Ltd.,
92-INA-262 (Sept. 20, 1993).
Whether the state agency should have allowed employer to
advertise at the lower wage where the CO ultimately determined
that rate below the prevailing rate is not determinative since
even if the local job service authorized the employer's
advertisement and accepted its wage offer, such a determination
is not binding on the CO. Ann Richman, 93-INA-13 (March
21, 1994).
Although a CO is not bound by the actions or statements of a
local employment service, when evaluating an application he or
she may take into account misleading information provided by a
local employment service. Thus, where the local employment
service's advice injects the employer's application with a fatal
defect, a CO has the discretion to permit the employer to correct
that defect. Sverdrup Technology, Inc., 88-INA-310 (Mar.
27, 1990); seealsoBob's Exxon, 89-INA-259
(May 2, 1991) (CO afforded the employer the opportunity to repost
the job with the state agency because local employment service
had forwarded only three of forty applicants).
A CO errs when he or she fails to consider a rebuttal
argument that the employer was misled by the local employment
service. Sverdrup Technology, Inc., 88-INA-310 (Mar. 27,
1990) (the CO must consider the argument, and while not bound by
the employment service's statements or actions, has the
discretion to permit the employer to correct the error).
In Sverdrup the local employment service
recommended that the employer move its "special
requirement" of experience with advanced metallurgy
techniques from item 14 of the ETA 750 and make it a job
duty under item 13. This left only a requirement of a Ph.D
in Metallurgical Engineering on the ETA 750A, and the CO,
apparently not knowing this background, found that the
employer's rejection of applicants who had that degree but
not the experience was unlawful. The CO failed in the FD to
address the employer's rebuttal argument concerning its
being misled by the local employment service. The panel
remanded the case for the CO to consider the
argument.
Moreover, the CO may be required to provide a reasonable
explanation for the departure from the local employment service's
finding.
SeePeking Gourmet, 88-INA-323 (May
11, 1989) (CO could require further recruitment beyond
the advice by the local employment service, provided,
however, that the CO offers the employer a reasonable
explanation of why its recruitment was inadequate and
how additional recruitment would be appropriate); as to
the CO's authority to direct further recruitment
efforts, see Chapter 22, III, F, 2 (Recruitment
Efforts).