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Labor Certification
     Foreign nationals applying for permanent resident status under the Advanced Degree (Non-National Interest Waiver) and Skilled Worker categories must first obtain an approved alien employment certification from the U.S. Department of Labor (DOL). The DOL must certify that, (1) based upon the Employer's efforts to recruit resident workers, there is a shortage of qualified, available, able and willing persons for the job opportunity; and (2) that approval of the application will not have an adverse impact on the wages and working conditions of workers who are similarly situated.
     Since October 1996, Employers have had the option of filing cases under regular supervised recruitment (non-waiver) or by filing under the Reduction in Recruitment (RIR) procedures set forth by the DOL, through a General Administrative Letter (GAL 1-97).
     To initiate the process, two sets of application forms are submitted to the State Employment office. The first is the job offer form which provides detailed information concerning the job opportunity including the job site location; the job title; salary; description of the job duties to be performed; the minimum requirements for the position in terms of education, training and experience; and specialized requirements. The second form is the Statement of Qualifications, which details the foreign national's education and practical working experience. This form is supplemented by documentation confirming that the foreign national meets the minimum and specialized requirements of the job opportunity, such as a current resume, degrees, diplomas, transcripts of coursework, reference letters from former employers.

General Administrative Letter (GAL) 1-97
     The GAL set forth new rules for Reduction in Recruitment (RIR) type cases, new procedures for regular or non-RIR type applications and new guidelines for consideration of restrictive requirements, business necessity issues, and recruitment efforts.
     If an employer wishes to take advantage of "RIR" processing, the employer must show that over a period of six (6) months immediately preceding the filing of the labor certification application, it engaged in a "pattern of recruitment" for the position. A "pattern of recruitment" could be shown through print advertisements, Internet job postings, use of headhunters, participation in job fairs and college recruiting, among other means. The employer need not submit documentation as to each and every United States applicant who may have applied for the position and was not hired, but rather would have to provide a general description of its recruitment results. For example, in addition to submitting proof of various forms of recruitment over a six-month period, the employer could state that having tried to recruit U.S. workers for "x" number of vacancies, having hired "y" number of U.S. workers, but still having "z" number of current vacancies, the employer wishes to hire the applicant who is the subject of the labor certification application.

Regular Recruitment (Non-RIR)
     Under this method, the application forms are submitted to the State Workforce Agency ("SWA") office, which processes them in the order in which they are received. The State SWA reviews the case and determines whether (1) the application is complete; (2) the wage offer meets the prevailing wage requirement; and (3) there are any unduly restrictive job requirements. If they find any issues, they will issue an assessment notice to the employer, giving the employer the option of amending the job offer or rebutting the issues raised. If the employer decides to amend the job offer, the SWA will then provide recruitment instructions, which will include running a three-day advertisement and posting an internal notice to the employees at the worksite. If the employer decides not to amend the job offer and, instead, provides a business necessity statement or rebuts the wage finding, the application will be forwarded to the DOL to adjudicate the issue(s). If the DOL agrees with the employer, the application will be returned to the SWA to carry out the recruitment; if the DOL does not agree with the employer, the DOL will issue a Notice of Findings (NOF), which is notice of the DOL's intent to deny the application. Again, the employer can decide to rebut the NOF or accept the NOF and agree to the amendment.
       The State Employment office will "screen" applicants and not refer them to employers unless they appear to meet all of the requirements set forth on the job offer form. Employers will need to interview all referred candidates and provide legitimate, objective, bona fide reasons for rejecting/disqualifying any applicants.
     In addition, the SWA and DOL regional office are required to implement a "limited review" process for processing non-RIR applications that have no special requirements, combination of duties, prevailing wage issues or job applicants. These cases move through the DOL very quickly once identified. 

Reduction in Recruitment
     The GAL sets forth criteria through which the DOL will look at the employer's recruitment efforts over the six-month period. Any company with a track record of recruitment efforts over a sustained period of time for professional level positions may utilize this program. All employers are encouraged to submit RIR cases in situations where:

1.  There are occupations for which there is little or no availability of U.S. workers;
2.  There are no restrictive requirements;
3.  The wage offer meets the prevailing wage requirement; and
4.  The employer can show adequate recruitment through sources normal to the occupation and industry within the previous six (6) months.

      RIR applications will be treated with priority and fast-tracked through both the SWA and the DOL. If a RIR is denied because recruitment was not acceptable, the application will be returned to the SWA for regular processing in the order in which it is received along with other applications. However, if the DOL determines that the application contains deficiencies other than recruitment, a NOF (Notice of Findings) will be issued. 

Other GAL Issues
Unduly Restrictive Job Requirements
     If the SWA determines that an application contains a restrictive requirement or one that did not exist prior to the date that the nonimmigrant applicant was hired, the employer will be asked to remove the requirement. The employer could choose to remove the requirement and proceed with the application or provide a business necessity justification, which would be reviewed by the DOL prior to the recruitment/granting of the RIR.
     Any business necessity justification needs to address the position as it existed prior to the hiring of the foreign national employee or show that there was a major change in the employer's business operation that caused the creation of the position. However, jobs that did not exist prior to the foreign national employee having been hired would be considered positions that are not truly open to U.S. workers unless the employer can clearly demonstrate a major change in business, which caused the position to be created after the foreign national was hired.
     The SWAs were provided new Operating Procedures or guidelines to assist them in reviewing cases to determine if there are "unduly restrictive job requirements." If, after its initial review of the application, the SWA determines that there are unduly restrictive job requirements, it will notify the employer of its findings. At this point, the requirement(s) can be removed or the employer can submit documentation to substantiate the business necessity of the requirement, which must include information showing either that:

     a. The job existed and was previously filled at the same requirement level prior to the alien employee being hired. Such documentation could include position descriptions, organizational charts and payroll records.

-or- 

      b. That there was a major change in the business operation, which caused the job to be created after hiring the alien (assuming the foreign national is currently working for the employer).

     If the employer chooses to substantiate the business necessity of the requirement, that justification and all supporting documents will be forwarded to the DOL for review. The DOL will either remand the application to the SWA for recruitment if it accepts the business necessity argument OR will issue a Notice of Findings (NOF) stating that the justification is not acceptable. If the case was filed as an RIR application, the DOL would either grant the RIR and approve the application OR issue a NOF (see above sections on RIR NOF delayed processing). The employer would then have the option of rebutting the NOF and risk a Final Denial of the application OR accept the NOF, delete the indicated restrictive requirements and conduct the recruitment under non-RIR processing. Please note that all of this action could potentially take place prior to any recruitment for the position.
     If the DOL agrees that the requirements are justified in a non-RIR application, any applicants who fail to meet the requirements would be deemed unqualified for the position. 

Resume Screening on Non-RIR type cases
      The SWA responsible for pre-screening all U.S. applicant resumes received prior to their being forwarded to the employer or the DOL Regional Office. Since the SWA will "screen" resumes, the presumption will be that the candidates whose resumes are forwarded to the employer are qualified. The employer has a higher burden for establishing that the applicants are not qualified for job-related reasons. Employers are required to interview all referred applicants. Furthermore, any resumes received by SWA after the recruitment period has ended on one case can be forwarded to other employers having similar job offers.

Standardized Recruitment through a NOF
     Where the DOL requires the employer through a NOF to recruit again because of deficiencies in the first recruitment, a 1­day Sunday advertisement will be required unless it is determined that a trade or professional journal is more appropriate. This advertisement will be run in conjunction with a 10­day job order placed by the SWA.

Certification – Approval
      If the Labor Certification is granted, the employer will then submit an immigrant visa petition (Form I-140) to the USCIS Service Center to have the foreign national classified as an immigrant under the appropriate employment-based category. The immigrant visa petition will be accompanied by the approved Labor Certification Application and supporting documentation verifying that the foreign national met all of the requirements set forth in the certification at the time that the individual was hired. The regulations require that the employer establish that it has sufficient financial resources to pay the wage.

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