An employer that is subject to this additional attestation
obligation (under the standards described in §655.736) is required --
prior to filing the LCA or any petition or request for extension of status
supported by the LCA -- to take good faith steps to recruit U. S. workers in
the United States for the job(s) in the United States for which the H-1B
nonimmigrant(s) is/are sought. The recruitment shall use procedures that meet
industry-wide standards and offer compensation that is at least as great as the
required wage to be paid to H-1B nonimmigrants pursuant to §655.731(a)
(i.e., the higher of the local prevailing wage or the employer's actual
wage). The employer may use legitimate selection criteria relevant to the job
that are normal or customary to the type of job involved, so long as such
criteria are not applied in a discriminatory manner. This section provides
guidance for the employer's compliance with the recruitment obligation.
(a) "United States worker" ("U.S. worker") is
defined in §655.715.
(b) "Industry," for purposes of this section, means the set
of employers which primarily compete for the same types of workers as those who
are the subjects of the H-1B petitions to be filed pursuant to the LCA. Thus, a
hospital, university, or computer software development firm is to use the
recruitment standards utilized by the health care, academic, or information
technology industries, respectively, in hiring workers in the occupations in
question. Similarly, a staffing firm, which places its workers at job sites of
other employers, is to use the recruitment standards of the industry which
primarily employs such workers (e.g., the health care industry, if the
staffing firm is placing physical therapists (whether in hospitals, nursing
homes, or private homes); the information technology industry, if the staffing
firm is placing computer programmers, software engineers, or other such
workers).
(c) "Recruitment," for purposes of this section, means the
process by which an employer seeks to contact or to attract the attention of
person(s) who may apply for employment, solicits applications from person(s)
for employment, receives applications, and reviews and considers applications
so as to present the appropriate candidates to the official(s) who make(s) the
hiring decision(s) (i.e., pre-selection treatment of applications and
applicants).
(d) "Solicitation methods," for purposes of this section,
means the techniques by which an employer seeks to contact or to attract the
attention of potential applicants for employment, and to solicit applications
from person(s) for employment.
(1) Solicitation methods may be either external or internal to the
employer's workforce (with internal solicitation to include current and former
employees).
(2) Solicitation methods may be either active (where an employer takes
positive, proactive steps to identify potential applicants and to get
information about its job openings into the hands of such person(s)) or passive
(where potential applicants find their way to an employer's job announcements).
(i) Active solicitation methods include direct communication to incumbent
workers in the employer's operation and to workers previously employed in the
employer's operation and elsewhere in the industry; providing training to
incumbent workers in the employer's organization; contact and outreach through
collective bargaining organizations, trade associations and professional
associations; participation in job fairs (including at minority-serving
institutions, community/junior colleges, and vocational/technical colleges);
use of placement services of colleges, universities, community/junior colleges,
and business/trade schools; use of public and/or private employment agencies,
referral agencies, or recruitment agencies ("headhunters").
(ii) Passive solicitation methods include advertising in general
distribution publications, trade or professional journals, or special interest
publications (e.g., student-oriented; targeted to underrepresented
groups, including minorities, persons with disabilities, and residents of rural
areas); America's Job Bank or other Internet sites advertising job vacancies;
notices at the employer's worksite(s) and/or on the employer's Internet
"home page."
(e) How are "industry-wide standards for recruitment" to be
identified? An employer is not required to utilize any particular number or
type of recruitment methods, and may make a determination of the standards for
the industry through methods such as trade organization surveys, studies by
consultative groups, or reports/statements from trade organizations. An
employer which makes such a determination should be prepared to demonstrate the
industry-wide standards in the event of an enforcement action pursuant to
subpart I of this part. An employer's recruitment shall be at a level and
through methods and media which are normal, common or prevailing in the
industry, including those strategies that have been shown to be successfully
used by employers in the industry to recruit U.S. workers. An employer may not
utilize only the lowest common denominator of recruitment methods used in the
industry, or only methods which could reasonably be expected to be likely to
yield few or no U.S. worker applicants, even if such unsuccessful recruitment
methods are commonly used by employers in the industry. An employer's
recruitment methods shall include, at a minimum, the following:
(1) Both internal and external recruitment (i.e., both within the
employer's workforce (former as well as current workers) and among U.S. workers
elsewhere in the economy); and
(2) At least some active recruitment, whether internal (e.g.,
training the employer's U.S. worker(s) for the position(s)) or external
(e.g., use of recruitment agencies or college placement services).
(f) How are "legitimate selection criteria relevant to the job that
are normal or customary to the type of job involved" to be identified?
In conducting recruitment of U.S. workers (i.e., in soliciting
applications and in pre-selection screening or considering of applicants), an
employer shall apply selection criteria which satisfy all of the following
three standards (i.e., paragraph (b) (1) through (3)). Under these
standards, an employer would not apply spurious criteria that discriminate
against U.S. worker applicants in favor of H-1B nonimmigrants. An employer that
uses criteria which fail to meet these standards would be considered to have
failed to conduct its recruitment of U.S. workers in good faith.
(1) Legitimate criteria, meaning criteria which are legally
cognizable and not violative of any applicable laws (e.g., employer may
not use age, sex, race or national origin as selection criteria);.
(2) Relevant to the job, meaning criteria which have a nexus to the
job's duties and responsibilities; and
(3) Normal and customary to the type of job involved, meaning
criteria which would be necessary or appropriate based on the practices and
expectations of the industry, rather than on the preferences of the particular
employer.
(g) What actions would constitute a prohibited "discriminatory
manner" of recruitment? The employer shall not apply
otherwise-legitimate screening criteria in a manner which would skew the
recruitment process in favor of H-1B nonimmigrants. In other words, the
employer's application of its screening criteria shall provide full and fair
solicitation and consideration of U.S. applicants. The recruitment would be
considered to be conducted in a discriminatory manner if the employer applied
its screening criteria in a disparate manner (whether between H-1B and U.S.
workers, or between jobs where H-1B nonimmigrants are involved and jobs where
such workers are not involved). The employer would also be considered to be
recruiting in a discriminatory manner if it used screening criteria that are
prohibited by any applicable discrimination law (e.g., sex, race, age,
national origin). The employer that conducts recruitment in a discriminatory
manner would be considered to have failed to conduct its recruitment of U.S.
workers in good faith.
(h) What constitute "good faith steps" in recruitment of U.S.
workers? The employer shall perform its recruitment, as described in
paragraphs (d) through (g) of this section, so as to offer fair opportunities
for employment to U.S. workers, without skewing the recruitment process against
U.S. workers or in favor of H-1B nonimmigrants. No specific regimen is required
for solicitation methods seeking applicants or for pre-selection treatment
screening applicants. The employer's recruitment process, including
pre-selection treatment, must assure that U.S. workers are given a fair chance
for consideration for a job, rather than being ignored or rejected through a
process that serves the employer's preferences with respect to the make up of
its workforce (e.g., the Department would look with disfavor on a
practice of interviewing H-1B applicants but not U.S. applicants, or a practice
of screening the applications of H-1B nonimmigrants differently from the
applications of U.S. workers). The employer shall not exercise a preference for
its incumbent nonimmigrant workers who do not yet have H-1B status
(e.g., workers on student visas). The employer shall recruit in the
United States, seeking U.S. worker(s), for the job(s) in the United States for
which H-1B nonimmigrant(s) are or will be sought.
(i) What documentation is the employer required to make or maintain,
concerning its recruitment of U.S. workers?
(1) The employer shall maintain documentation of the recruiting methods
used, including the places and dates of the advertisements and postings or
other recruitment methods used, the content of the advertisements and postings,
and the compensation terms (if such are not included in the content of the
advertisements and postings). The documentation may be in any form, including
copies of advertisements or proofs from the publisher, the order or
confirmation from the publisher, an electronic or printed copy of the Internet
posting, or a memorandum to the file.
(2) The employer shall retain any documentation it has received or prepared
concerning the treatment of applicants, such as copies of applications and/or
related documents, test papers, rating forms, records regarding interviews, and
records of job offers and applicants' responses. To comply with this
requirement, the employer is not required to create any documentation it would
not otherwise create.
(3) The documentation maintained by the employer shall be made available to
the Administrator in the event of an enforcement action pursuant to subpart I
of this part. The documentation shall be maintained for the period of time
specified in §655.760.
(4) The employer's public access file maintained in accordance with
§655.760 shall contain information summarizing the principal recruitment
methods used and the time frame(s) in which such recruitment methods were used.
This may be accomplished either through a memorandum or through copies of
pertinent documents.
(j) In addition to conducting good faith recruitment of U.S. workers (as
described in paragraphs (a) through (h) of this section), the employer is
required to have offered the job to any U.S. worker who applies and is equally
or better qualified for the job than the H-1B nonimmigrant (see 8 U.S.C.
1182(n)(1)(G)(i)(II)); this requirement is enforced by the Department of
Justice (see 8 U.S.C. 1182(n)(5); 20 CFR 655.705(c)).
[65 FR 80231, Dec. 20, 2000]