Judges' Benchbook
Second Edition - May 1992


CHAPTER 13 Divisions I to III


Return to Main Headings .
Check Supplement .


I. The regulations; requirement of good faith recruitment

II. Timeliness of contact

III. Contact/interview of qualified or seemingly qualified applicants

I. The regulations; requirement of good faith recruitment

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).

II. Timeliness of contact

A. In general

1. Requirement of timely contact

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 ).

2. As soon as possible standard

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 ).

See also Flamingo 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.").

3. Presumption that delay contributed to applicant's unavailability

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 ).

4. Presumption of design to discourage U.S. applicants

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.

But see 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 ( see supra Division II, A, 3); ergo, an employer's intent should be considered when determining whether that presumption is rebutted. But see also 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."

5. Contact within 45-day period for submission of recruitment report

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 ). See also Rancho Liquor , 90-INA-520 (Dec. 3, 1991); Klausner Transportation Co. , 90-INA-46 (Apr. 29, 1991).

B. Justification or excuse for delay

1. General rule

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 ).

2. Justification

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

3. Excuse

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.

4. Untimely contact; no justification or excuse proffered

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).

5. Untimely contact; explanation inadequate

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, see infra Division VI.

6. Timeliness or justification for delay established

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).

  • Fair Weather Marine, Inc. , 88-INA-331 (Sept. 21, 1989) (19-day delay, included holiday season).

  • 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).

C. Professional or nonprofessional position

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.

See also Ironclad 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").

See also Creative 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.

D. Failure to contact applicants

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).

See also Flamingo 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).

See also Simon'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.

III. Contact/interview of qualified or seemingly qualified applicants

A. Applicant clearly not qualified

1. General rule

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. See Anonymous 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. See Gorchev & Gorchev Graphic Design , 89-INA-118 (Nov. 29, 1990) ( en banc ), and infra Division III, B.

2. Expectation that resume includes career highlights

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).

But see 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.

B. Applicant meets major job requirements; obligation to investigate credentials

1. General rule

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'd Nancy 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).

2. Resume need not state possession of all qualifications

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).

But see Fluid 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.

3. Illustrative cases; applicants with work experience or education similar to that required by the job

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).

4. Detailed subsidiary 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.

See also :

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).


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