Judges' Benchbook: Alien Labor Certification

Office of Administrative Law Judges
United States Department of Labor

Second Edition - May 1992

CHAPTER 13 -- SUPPLEMENT

Supplement current through January 1997

GOOD FAITH EFFORTS TO RECRUIT

Return to Main Text - Divisions I - III .
Return to Main Text - Divisions IV - VII .
TABLE OF CONTENTS

I. The regulations; requirement of good faith recruitment

II. Timeliness of contact

III. Contact/interview of qualified or seemingly qualified applicants

IV. Manner of contact

V. Interview requirement and travel expenses

VI. Later attempts to contact applicants

VII. Alien involvement in interview

I. The regulations; requirement of good faith recruitment

Where Employer conducted interviews in secrecy, at a hiring agency, did not reveal who he was to the applicants, and did not encourage any interplay or communication between the 2 parties, Employer has not engage in good faith recruitment. Polir Construction Co., Inc. , 94-INA-561 (Aug. 17, 1995).

Where Employer fails to rebut applicant's claim that he was interviewed and where applicant reported being told that no real job opportunity existed for other than foreign workers, Employer has not met burden of recruiting in good faith and has unlawfully rejected qualified U.S. applicant. Greenpoint Woodworking, Inc ., 94-INA-553 (Aug. 11, 1995).

Where Employer delayed interviews and made statement to interviewee designed to discourage interest in the job, Employer has not engaged in good faith recruiting. Peterbuilt , 94-INA-267 (Aug. 7, 1995).

See Bellport Country Club , 94-INA-575 (June 6, 1996); Daniel Costiuc , 94-INA-541 (Feb. 23, 1996); Agro International, Inc. , 94-INA-638 (Mar. 26, 1996); WM Auto Rebuilders , 95-INA-36 (Oct. 1, 1996); Afana Printing , 95-INA-31 (Oct. 2, 1996) (denying certification where the applicant said that she was told that the wage offered was $8.00 per hour and not the prevailing wage of $11.73 an hour and where Employer said that the applicant had misunderstood him); Farid Pakravan , 95-INA-9 (Nov. 26, 1996) (denying certification for failure to timely contact U.S. applicants where Employer argued that he was on vacation when the state agency forwarded the application but responded as soon as possible); Expert Auto Body Center , 95-INA-39 (Oct. 3, 1996) (denying certification for the position of auto repairer after Employer rejected 1 applicant on the basis that his prior experience was in home repairs and on the basis that he lacked experience using a particular framework machine, but where the applicant's resume indicated auto body experience and fender repairman for at least 18 years including work with frame machines and auto body tools); Diamond Foods , 95-INA-42 (Oct. 2, 1996) (denying certification where the Employer contended in rebuttal that he told no applicants that the position was filled, but where 2 applicants stated in the questionnaire that they were told the position was filled, where the Employer delayed interviewing 1 applicant who repeatedly contacted the Employer, where the Employer noted the rejection of an applicant on the basis of lack of qualifications, but where the applicant denied that he was unqualified); National Distributors Lifting Systems , 95-INA-45 (Oct. 2, 1996) (finding no good faith recruitment for the position of hoist and lift equipment maintenance technician where Employer conceded that he rejected an applicant who wanted the position and where Employer rejected the applicant on the basis that he would be looking for another position while working for Employer and the on the basis that Employer did not want to spend the time and money training someone who would be looking elsewhere for employment because such assertions must be documented); Catholic Cemetery of the Archdiocese of Washington, Inc. , 95-INA-70 (Dec. 2, 1996); Calterm, Inc ., 94-INA-35 (July 1995) (holding that neither the Employer's failure to include the word "Alien" in a posting for the job, nor the sending of the recruitment packet to the state employment agency's post office box rather than street address was indicative of bad faith); Coventry Place , 95-INA-319 (Feb. 6, 1997); El Torito Restaurant , 94-INA-602 (Aug. 29, 1995); Deluxe ica Works , 94-INA-461 (Feb. 26, 1996); Kevry Corp., d/b/a D & D Stainless, Inc. , 94-INA-393 (June 29, 1995); Pouyan, Inc., d/b/a Dominos Pizza , 94-INA-414 (Oct. 12, 1995); Florinda Fashions, Inc ., 94-INA-458 (Oct. 13, 1995); Twin City Testing , 94-INA-415 (Oct. 12, 1995).

A requirement of good faith recruitment is implicit in the regulations. See H.C. LaMarche Ent., Inc. , 87-INA-607 (Oct. 27, 1988). Employer rejected in bad faith a U.S. applicant for the position of teacher on the basis that her resume did not indicate that she taught Punjabi to children. The applicant's resume indicated a M.A. in English, B.A. in Punjabi and experience as a Punjabi teacher for over 11 years in India. Furthermore, the applicant stated in a questionnaire that the applicant taught Punjabi for 12 years to children. Sikh Cultural Society of New York , 94-INA-560 (Aug. 23, 1995).

Employer applied for certification for the position of Caretaker. Employer rejected 1 applicant, saying he was "rude and combative and would not commit to giving up his own business." A 2d applicant was rejected because "he stated that he has his own full-time business and can only do piecemeal work." A 3d applicant was rejected because he was uninterested and had no experience doing tree work." A last applicant was rejected because "he has no green card and is not a legal, permanent resident..." and because he had no experience chopping trees. Disagreeing with Employer, the 1st applicant asserted that "he was told that the job was filled and was not as described." The 2d applicant stated that Employer only contacted him after he had called and left 2 messages with the Employer and mailed her references. Employer informed him that he was not hired because he owned his own business. The 3d applicant stated he was never called by Employer. The last applicant argued that he was never contacted and that he had supplied citizenship documentation. The CO denied certification and the Board affirmed. Citing H.C. LaMarche Ent., Inc. , 87-INA-607 (Oct. 27, 1988) , the Board noted that Employers have a good faith duty to recruit. As to the first 2 applicants, the Board found that Employer could not reject them without first offering them the position. The Board, furthermore, found that Employer should have inquired about the last applicant's experience "chopping trees." Dr. Donna Rohlf, Ph.D. , 95-INA-148 (Nov. 21, 1996).

Employer applied for certification for the position of Middle Eastern Specialty Cook. Employer noted the rejection of 1 applicant who had worked at 2 different Middle Eastern Restaurants for 1 1/2 years and attended cooking school for 11 months. He was rejected because he was "unable to prepare, season, and cook certain dishes such as spinach, meat and chicken pies, and desserts..." In rebuttal the CO's NOF, Employer stated that it had offered the applicant the position. The CO denied certification and the Board affirmed. Citing H.C. LaMarche Ent., Inc. , 87-INA-607 (Oct. 27, 1988), the Board noted that Employers have a duty to recruit in good faith. In the instant case, the Board reasoned that the Employer could not cure an initial violation of the regulations by offering the position to the applicant after the CO issued the NOF. In addition, the Board noted that the only evidence proffered to show that the applicant was unable to prepare the unable to prepare certain dishes was 1 of the applicant's former employers. Last, the Board noted that the Carmel Deli, 1 of the applicant's former employees actually served some of the dishes that Employer claimed the applicant could not prepare. Kamal's Middle Eastern Specialties , 95-INA-167 (Dec. 19, 1996).

The requirement of a good faith effort to recruit qualified U.S. workers is implicit in the regulations. See H.C. LaMarche Ent., Inc. , 87-INA-607 (Oct. 27, 1988). Employer rejected 1 applicant for a position in a fast food restaurant because the applicant lacked interest and because he never returned a call. However, the Board affirmed the CO's denial of certification because Employer failed to provide internal records of telephone messages or proof of attempts to contact the applicant through other means, because the applicant informed the CO that he had been interviewed but that he was rejected for lack of steam oven knowledge, because in rebuttal Employer admitted that the applicant had been interviewed and said that the interview had been overlooked in recruitment and because the Employer's unsupported arguments regarding attempts to contact applicants are inadequate to establish good faith recruitment. Kentucky Fried Chicken , 94-INA-442 (Oct. 6, 1995).

An Employer must demonstrate that it has made a good faith effort to recruit. H.C.LaMarche Ent., Inc. , 87-INA-607 (Oct. 27, 1988). Employer failed to document that he attempted to contact an applicant by mail. Alleged messages that Employer left on the machine, even if true, would be inadequate to meet this duty of good faith. Big Drop People's Sportswear , 94-INA-515 (Oct. 30, 1995).

Implicit in the regulations is a requirement of good faith recruitment. See H.C. LaMarche Ent., Inc. , 87-INA-607 (Oct. 27, 1988). In its recruitment report, the CO noted the rejection of 2 (among others) U.S. applicants on the basis that they lacked experience in air ticketing and hotel bookings. In the NOF the CO requested the documentation of the lawful rejection of the U.S. applicants. In rebuttal, Employer dropped 1 reason, lack of experience in hotel bookings, as a reason for rejection of 1 applicant. The Employer also changed the reason for dropping the 2d applicant from lack of experience in air ticketing to lack of experience making car reservations. The Board affirmed the CO's denial of certification because the reasons for rejecting the applicants called into question Employer's good faith. Fourways Travel, Inc ., 94-INA-562 (Mar. 29, 1996).

Implicit in the regulations is an employer's obligation to recruit in good faith. See H.C. LaMarche Ent., Inc. , 87-INA-607 (Oct. 27, 1988). Good faith recruitment not found where only in rebuttal and not in the recruitment report the Employer reported that it tried to contact 1 applicant by phone. Notable was the fact that in the recruitment report, Employer documented the attept to contact other applicants by certified mail. Ramineh & Fani Certified Public Accountants , 94-INA-377 (June 5, 1995).

Employer sought certification for the position of Live-in Home Attendant. The Employer rejected 6 applicants either due to their alleged unwillingness to work or disqualification based on their citizenship/residence status. However, the CO independently contacted the 6 applicants, all of whom independently denied having been contacted by the Employer. In addition, the 6 applicants denied Employer's factual basis for having rejected them. Employer rebutted with statements from its attorney. The CO denied certification and the Board affirmed. Citing H.C. LaMarche Ent., Inc. , 87-INA-607 (Oct. 27, 1988), the Board reasoned that Employer had an implicit duty to make a good faith effort to recruit. With the 6 applicants independently contradicting Employer, here, the Board determined that the CO correctly placed more weight on the applicants' statements than on those of Employer. As a consequence, the Board determined that Employer "failed to establish a good faith effort to recruit." Mrs. Marion Matros for Hilde Israel , 95-INA-147 (Dec. 23, 1996).

Employer applied for certification for the position of Electronic Technician, the job duties including the detection of problems and the repair of microwave ovens. Employer required 2 years of experience. In its recruitment report, Employer noted it rejected 4 applicants without interview. The 1st applicant was rejected because, having in the past solely been employed by Eastern Airlines, his experience was "not related to our type of work." The 2d applicant was rejected because experience in industrial radio technology engineering management, and industrial electronic equipment did not "qualify him for the job." The 3d applicant was rejected because he lacked experience in repairing radios and microwave ovens. The last applicant was rejected because his experience was related to TV repairs. The CO issued a NOF proposing to deny certification on the grounds that Employer unlawfully rejected 4 U.S. applicants. In rebuttal, Employer stated that the 4 applicants possessed no experience in the repair of microwave ovens and that it was difficult to interview all applicants due to the "overwhelming" number of applicants. The CO denied certification and the Board affirmed. Citing H.C. LaMarche Ent., Inc. , the Board noted that Employers have an obligation to make a good faith effort to recruit. In the instant case, the Board reasoned that the CO correctly found that the 4 applicants had at least 2 years of experience and should have been contacted. Active Electronics, Inc. , 95-INA-160 (Dec. 23, 1996).

An Employer who seeks to hire an alien for a job opening must demonstrate that it has first made a "good faith" effort to fill the position with a U.S. worker. H.C.LaMarche Ent., Inc. , 87-INA-607 (Oct. 27, 1988). Employer argued that he had left adequate and timely messages on an applicant's answering machine. However, Employer did not document that he tried to contact the applicant by mail. Therefore, the Employer failed to document a good faith effort to recruit. Big Drop People's Sportswear , 94-INA-515 (Apr. 17, 1996).

Good faith recruitment is implicit in the regulations. See H.C. LaMarche Ent., Inc. , 94-INA-554 (Aug. 24, 1995). Employer received 4 applications from U.S. applicants on October 15 and the resumes of 9 more on October 30. The Employer justified this delay on the basis that he was ill and that he wanted to wait until receiving all applications before contacting applicants. However, Employer did not report being ill until November 17. The Board found that there was sufficient time to contact the applicants before Employer reported being ill and that waiting until Employer received all the applications was not a valid excuse and it demonstrated a "total lack of good faith recruitment." Easterner Motor Inn, Inc., t/a Best Western Motel , 94-INA-554 (Aug. 24, 1995); See also , Elf Enterprises , 94-INA-622 (Apr. 16, 1996).

Employer applied for certification for the position of Manager, Grocery. The advertising for the position was listed under "Liquor Store Manager" rather the "Manager, Grocery." The CO issued a NOF finding that the advertisement had not been placed where the most number of likely applicants would look. Employer was instructed to cure this defect or rebut the CO's finding. Employer rebutted, arguing that it had advertised the position under "Liquor" rather than under "Manager" at the advice of the local employment agency. Employer further argued that the CO provided no reasoned explanation for the proposed advertisement. The CO denied certification and the Board affirmed. Citing H.C. LaMarche Ent., Inc., 87-INA-607 (Oct. 27, 1988) (en banc), the Board noted that implicit in the regulations is the requirement of good faith advertising. The Board found that the CO had clearly explained that re-advertisement was necessary because qualified applicants would most likely search under "manager" rather than "liquor." The Board found that Employer's failure to accept the CO's offer to allow re-advertisement demonstrated a lack of good faith. Family Liquors & Grocery , 95-INA-125 (Dec. 23, 1996).

Employer applied for certification for the position of Mechanical Engineer and required a Master's Degree in Mechanical Engineering plus 2 years of experience in the job offered. The CO denied certification both on the basis that the Master's Degree was unduly restrictive and on the basis that Employer had failed to provide information requested by the CO concerning the unlawful rejection of 1 applicant. Employer had rejected 1 applicant on the basis that he had no Master's Degree even though he was otherwise qualified. On appeal, the Board cited H.C. LaMarche Ent., Inc. , 87-INA-607 (Oct. 27, 1988) which held that employers have a duty to recruit in good faith. Here, the Board noted that Employer failed to provide documentation on the good faith recruitment. However, the Board remanded the case on the issue of unduly restrictive job requirements. Sidhu Assoc., Inc. , 95-INA-182 (Jan. 2, 1997).

Employer applied for certification for the position of Tailor. Employer rejected 1 applicant because she lacked the required experience. The CO proposed to deny certification for the unlawful rejection of a U.S. Applicant. The NOF instructed Employer to document its attempts to contact the applicant. In rebuttal, Employer documented nothing, although the Employer did explain that the applicant lacked the "the necessary experience required on altering and finishing high quality..." garments. The CO denied certification and the Board affirmed. Citing Imperial Fashions , 93-INA-314 (Oct. 24, 1994), Boerum Savvy Auto Care, Inc. , 93-INA-140 (Feb. 27, 1994), and Norm's Restaurant , 89-INA-280 (Dec. 1, 1990), the Board noted that "the employer failed to sustain its burden of proof that it made a good faith effort to reach and interview ...[the applicant] and to consider her application ..." Grinnel Pajama Corp. , 95-INA-238 (Dec. 19, 1996).

Employer sought certification for the position of "Diesel Mechanic." During the recruitment period Employer received a few applications which Employer delayed 4 weeks before processing. Employer justified this delay by noting that he "lacked an elaborate clerical staff." Employer justified the rejection of one of these applicants because "[h]is resume does not show ANY EXPERIENCE as Diesel [sic] mechanic except for the title if [sic] you review the job description on his resume you will agree with me that they do not even resemble the job to be performed." The CO denied certification and the Board affirmed. It found that Employer's excuse that he "lacked an elaborate clerical staff" to process the applications was inadequate to justify a 4 week delay. It found also that, in spite of Employer's excuse for the rejection of the applicant, his resume indicated on its face that there was a reasonable possibility that the applicant met the stated requirements of 4 years of experience as a diesel mechanic such that the Employer had an obligation to investigate the applicant's credentials further. In sum, the Board found that Employer did not conduct good faith recruiting, a requirement implicit in the regulations. See H.C. LaMarche Ent., Inc . , 87-INA-607 (Oct. 27, 1988). Cavalier's Bay Center, Inc., 95-INA-90 (Jan. 27, 1997).

Employer sought labor certification for the position of Set Designer for which the Employer required an M.F.A. with "Technical Design and Production" as the major field of study. A U.S. applicant for the position possessed a B.A. with a concentration in Design and Technical Production and an M.F.A. in Theater Arts, with a concentration in scenic lighting and design, an advanced study master class in technical production with the Cologne Opera, had been the technical director of over 75 productions, and had won an award for technical excellence on 2 separate occasions. Employer rejected the applicant, arguing that he did not have the "required engineering education to prepare the necessary working drawings...," "that the set designer position we are looking to fill is in stage automation design and not in scenery and lighting design...," and that "the job opportunity requires specific technical design and production knowledge." The CO denied labor certification and the Board affirmed. It reasoned that Employer did not recruit in good faith since Employer did not list any "specific engineering education in its requirements stated on the ETA 750 form..." and did not list any "specific technical design and production knowledge" as a requirement for the job opportunity. Instead, the Board noted, Employer "specifically lists in the duties, `provide technical support for theatrical set designs,' and therefore his statement that the position is `for stage automation design and not scenery and lighting design' appears disingenuous." See H.C. LaMarche Ent., Inc. , 87-INA-607 (Oct. 27, 1988). Showtech, Inc., 95-INA-315 (Feb. 11, 1997).

Where an applicant for the position of "Monitor, Sleep-In, Household," was apparently qualified, where in lieu of filing a recruitment report with respect to the applicant, the Employer submitted a copy of a letter addressed to the applicant but did not indicate whether or when this letter was actually mailed, whether it was returned as undeliverable, and whether any response was received, then Employer did not recruit in good faith, a requirement "implicit" with respect to post-filing recruitment because the information submitted with respect to the rejection of this applicant was inadequate. Cristina Clark , 94-INA-508 (Oct. 31, 1996).

Employer filed an application for labor certification for the position of "Elementary School Teacher" and the duties included the "Sacramental preparation of students." Employer required one year experience in the job offered. An alternative to the requirement of one year experience in the job offered was one year experience in the related field of "Teacher." Employer rejected 6 applicants on the basis that they lacked experience necessary for the Sacramental preparation of the students. The CO denied certification and the Board affirmed. It reasoned that because the 6 applicants met the alternative requirement of 1 year experience as a teacher they could not be rejected on the basis that they lacked experience in the job offered (experience in the Sacramental preparation of students). These rejections, the Board held, demonstrated a lack of good faith recruitment, a requirement implicit in the regulations. See H.C. LaMarche Ent., Inc. , 87-INA-607 (Oct. 27, 1988). Sacred Heart School , 94-INA-510 (Nov. 14, 1996).

An applicant was ostensibly qualified for the position of "Tile Mason" but the Employer claimed initially that the applicant was uninterested in the work location. However, the applicant claimed that "I asked...[Employer] about the location of the job and told her that I would be able to work anywhere." The applicant further claimed that he was uninterested in the position because Employer's agent informed him on the telephone that the wage would be $12.00 per hour even though the advertised wage was $26.54 per hour. In rebuttal to the NOF Employer claimed that Employer's agent informed the applicant that the advertised salary "was in accordance with Department of Labor regulations although Employer had initiated the application with a starting salary of $12.00, and therefore, would be [sic] the ultimate decision of the Employer as to the specific salary..." Employer claimed that its agent was "merely providing an administrative albeit tedious and time consuming, function of facilitating the prospective applicant to meet with the Employer..." The CO denied certification and the Board affirmed. The Board ruled that Employer did not recruit in good faith, a requirement "implicit" with respect to post-filing recruitment because the agent's initial contact with the applicant was designed to discourage him from pursuing the position. See H.C. LaMarche Ent., Inc. , 87-INA-607 (Oct. 27, 1988). Striano Contracting Corp. , 94-INA-509 (Nov. 14, 1996).

Employer applied for certification for the position of "Account Representative" and was informed on at least 7 occasions that he would be required to return all signed resumes with documentation of recruitment results and was informed that it was Employer's responsibility to verify the employment status of each applicant. Not withstanding these instructions, Employer only supplied the resumes of the 5 applicants that it reported rejecting. According to unsigned written statements on the back of their resumes, the Employer rejected these applicants because they did not speak Chinese, Mandarin Chinese, or Taiwanese. Employer justified these rejections by "merely" asserting that "none of these applicants have had any experience working with Chinese/Taiwanese customers...," that, in "order to successfully penetrate this market, the applicant will have had to have considerable experience working with this minority group...," and that none of these applicants had that experience. Employer justified a last rejection of a U.S. worker who spoke Chinese fluently on the basis that the applicant had no experience in financial planning. However, the language requirement and a requirement that the applicant be knowledgeable of all aspects of Chinese life, including customs, attitudes, and socio-economics were deleted from the Form ETA-750, and the newspaper advertisements contained no such requirement. The CO denied labor certification and the Board affirmed. The Board reasoned that Employer's deletion of these items was not genuine even though employers are required to make a good faith effort to recruit. See H.C. LaMarche Ent., Inc . , 87-INA-607 (Oct. 27, 1988). Metlife , 95-INA-327 (Feb. 11, 1997).

An applicant stated that Employer interviewed him on January 7 for the position of Auto echanic. He reported that Employer told him that, although he was hired, business was slow and wished him to start at the end of January. Employer told him at the end of January that business was still slow and to call again in February or March. A second applicant stated that Employer told him that the position was filled and when he again called, was told that business was slow and to call back. Employer acknowledged that he interviewed the first applicant, but on February 7 rather than on January 7. Employer argued that the first applicant, a Bulgarian citizen, failed to produce documentation allowing him to work in the United States and that the second applicant could not provide telephone numbers of former employers to check for references. The CO denied certification and the Board affirmed. Initially, the Board questioned the lawfulness of the rejection of 3 other seemingly qualified applicants in light of the discrepancies in the rejection of the two above candidates. The Board rejected the validity of a January 27 recruitment report wherein Employer reported that none of the U.S. applicants "showed up for interview" but also stated wherein that "if any of these applicants call requesting to be interviewed...I will promptly call..." the CO. The Board found that Employer did not recruit in good faith, which is an implicit requirement in the regulations. See H.C. LaMarche Ent., Inc . , 87-INA-607 (Oct. 27, 1988). Tilden Car Care Center , 95-INA-88 (Jan. 27, 1997).

An Employer rejected 4 U.S. applicants for the position of "Housekeeper - Live-in." One of these applicants was rejected because "she did not have the required experience" and another was rejected because "the applicant moved from the address given and no one at the address and telephone that was left could furnish us with any information as to her whereabouts." The former applicant reported that Employer had told her that she was overqualified. The latter applicant was reached by the CO via regular mail at the address given and noted that Employer never contacted her. In rebuttal to a NOF which required the Employer to respond to these discrepancies, Employer stated that every number the former applicant "gave us was incorrect, and she could not, or would not give further telephone numbers to contact the people." Employer further stated that "[w]e made numerous attempts to contact the ...[latter applicant]...[s]he was not at the telephone listed and the people who answered the telephone indicated that she was seldom, if ever, there and that they would not take a telephone message for her..." The CO denied certification and the Board affirmed. The Board found that Employer's statements were not only inconsistent with the applicants' statements, but also inconsistent with Employer's own statements. Noting that it is well settled that an Employer's failure to produce documentation reasonably requested by the CO will result in a denial of alien labor certification, the Board found Employer's response to be inadequate. See John Hancock Financial Services , 91-INA-131 (June 4, 1992). The Board also found that Employer did not conduct recruiting in good faith which is a requirement implicit in the regulations. See H.C. LaMarche Ent., Inc . , 87-INA-607 (Oct. 27, 1988). Neil Clark , 95-INA-92 (Jan. 27, 1997).

II. Timeliness of contact

A. In general

1. Requirement of timely contact

Where an applicant for the position of "Monitor, Sleep-In, Household," was apparently qualified, where in lieu of filing a recruitment report with respect to the applicant, Employer submitted a copy of a letter addressed to the applicant but did not indicate whether or when this letter was actually mailed, whether it was returned as undeliverable, and whether any response was received, then Employer did not recruit in good faith because an employer's failure to timely contact U.S. applicants has been found to constitute a lack of good faith recruiting when the probable result of the delay is a chilling effect on applicants. See Loma Linda Foods, Inc., 89-INA-289 (Nov. 26, 1991) (en banc). Cristina Clark , 94-INA-508 (Oct. 31, 1996).

An applicant was ostensibly qualified for the position of "Tile Mason" but the Employer claimed initially that the applicant was uninterested in the work location. However, the applicant claimed that "I asked...[Employer] about the location of the job and told her that I would be able to work anywhere." The applicant further claimed that he was uninterested in the position because Employer's agent informed him on the telephone that the wage would be $12.00 per hour even though the advertised wage was $26.54 per hour. In rebuttal to the NOF Employer claimed that Employer's agent informed the applicant that the advertised salary "was in accordance with Department of Labor regulations although Employer had initiated the application with a starting salary of $12.00, and therefore, would be [sic] the ultimate decision of the Employer as to the specific salary..." Employer claimed that its agent was "merely providing an administrative albeit tedious and time consuming, function of facilitating the prospective applicant to meet with Employer..." The CO denied certification and the Board affirmed. The Board held that had failed to timely contact the U.S. applicant and reasoned that this failure constituted a lack of good faith. The probable result of the delay, it noted, was a chilling effect on the applicant because the initial contact by Employer's agent was designed to discourage the applicant from pursuing the employment in question. See Loma Linda Foods, Inc. , 89-INA-289 (Nov. 26, 1991) (en banc). Striano Contracting Corp. , 94-INA-509 (Nov. 14, 1996).

An employer must contact potentially qualified U.S. applicants as soos as possible after it receives resumes or applications, so that the applicants will know that the job is clearly open to them. See Loma Linda Foods, Inc. , 89-INA-289 (Nov. 26, 1991) (en banc). The CO after the NOF ordered Employer to re-advertise. Employer argued that it never received the resumes from the job service. For the sake of argument, the Board accepted this assertion. However, it noted that Employer had the applicants' addresses on June 18. Employer's counsel stated that Employer tried to contact the applicants by telephone although those calls were not documented and Employer mentions no such contact. The only evidence that Employer tried to contact the applicants was certified mail receipts dated July 2. The CO also had questionnaires from applicants which contradicted the Employer's statements. Houston's Restaurant , 94-INA-487 (Feb. 13, 1996).

Employer applied for labor certification for the position of "Computer Administrator and Purchasing Agent." The position was advertised on March 23-25, 1993, but Employer did not contact any of the 13 applicants for interview until April 28, 1993. The Employer argued that several U.S. applicants were contacted for interview and the good faith recruitment regulations were followed. The CO denied certification and the Board affirmed. It reasoned that an employer must make efforts to contact qualified U.S. applicants in a timely manner and over month between the advertisement and interviews was too long. See Loma Linda Foods, Inc., 89-INA-289 (Nov. 26, 1991) (en banc). K&D Export Import Company, 95-INA-275 (Jan. 29, 1997). See also Catholic Cemetery of the Archdiocese of Washington, Inc. , 95-INA-70 (Dec. 2, 1996).

An employer must contact potentially qualified U.S. applicants as soon as possible after the receipt of resumes or applications, so the applicants will clearly know the job is open to them. See Loma Linda Foods, Inc. , 89-INA-289 (Nov. 26, 1991) (en banc). Employer received 4 applications from U.S. applicants on October 15 and the resumes of 9 more on October 30. Employer justified this delay on the basis that he was ill and that he wanted to wait until receiving all applications before contacting applicants. However, Employer did not report being ill until November 17. The Board found that there was sufficient time to contact the applicants before Employer reported being ill and that waiting until Employer received all the applications was not a valid excuse. Easterner otor Inn, Inc., t/a Best Western Motel , 94-INA-554 (Aug. 24, 1995).

Failure to timely contact a qualified U.S. applicant constitutes a failure to recruit in good faith. See Loma Linda Foods, Inc. , 89-INA-289 (Nov. 26, 1991) (en banc). Employer received 3 resumes from U.S. applicants for the position of cabinet maker indicating that they had experience as cabinet makers. Employer stated that the applicants were not contacted either because of difficulty reaching the applicants or because it was unnecessary to reach them. Employer failed to contact the applicants by mail. Several applicants disagreed with the employer's statement that it was unnecessary to contact them. Certification was properly denied. Deluxe Mica Works , 94-INA-461 (Feb. 26, 1996).

Employer applied for certification for the position of Italian Specialty Cook. The CO issued a NOF, noting that 2 applicants informed the CO that, had they been contacted them in a timely manner, they may have been interested in the position. In rebuttal Employer informed the CO that, although he had started trying to contact the 1st applicant on February 16, the applicant had been unavailable until February 23. Employer also contended that it was unable to contact the 2d applicant until March 2. The CO denied certification and the Board affirmed. Citing Loma Linda Foods, Inc ., 88-INA-288 (Nov. 26, 1991) (en banc), the Board noted that failure to timely contact U.S. applicants indicates lack of good faith recruitment. In the instant case, the Board held that Employer's 3 week delay in contacting the 2 applicants was untimely. Pizzeria and Restaurant Randazzo , 95-INA-152 (Dec. 27, 1996).

Labor certification was properly denied where the attempts to contact U.S. workers by mail after nine months did not demonstrate that Employer engaged in a serious good faith recruitment effort of U.S. workers. New York Furniture , 94-INA-192 (June 6, 1995).

An Employer must provide adequate notice to applicants regarding interview times. The CO was correct in denying labor certification where Employer mailed a letter on April 1, 1993 with an interview date of April 5, 1993, the date the applicant received the letter. Therefore, the applicant's failure to appear for the interview was not a valid reason to reject her. Rescheduling the interview for September 1, 1993 was not timely and did not correct Employer's earlier failure. Jeepney Grill , 94-INA-401 (July 3, 1995).

2. As soon as possible standard

Employer applied for labor certification for the position of "Computer Administrator and Purchasing Agent," the job duties including, "operate computer to process business, manage system, run reports, input orders, purchase orders, receiving and general office work." The position was advertised on March 23-25, 1993, but the Employer did not contact any of the 13 applicants for interview until April 28, 1993. The Employer argued that several U.S. applicants were contacted for interview and the good faith recruitment regulations were followed. The CO denied certification and the Board affirmed. It reasoned that although the "as soon as possible" standard does not enumerate a specified time period, Employer's five-week delay was not justified because the recruitment was local and there were only 13 applications. See Loma Linda Foods, Inc., 89-INA-289 (Nov. 26, 1991) (en banc). K&D Export Import Company, 95-INA-275 (Jan. 29, 1997).

Employer applied for certification for the position of Italian Specialty Cook. The CO issued a NOF, noting that 2 applicants informed the CO that, had they been contacted in a timely manner, they may have been interested in the position. In addition, the 1st applicant stated that Employer told her that she was overqualified for the position. In rebuttal the Employer informed the CO that, although he had started trying to contact the 1st applicant on February 16, the applicant had been unavailable until February 23. Employer also contended that it was unable to contact the 2d applicant until March 2. The CO denied certification and the Board affirmed. Citing Loma Linda Foods, Inc ., 88-INA-288 (Nov. 26, 1991) (en banc) (establishing 3 factors to determine whether an employer satisfied the as soon as possible standard: whether the position requires extensive or minimal credentials, whether recruitment is local, and whether many or few people applied for the position), the Board noted that failure to contact U.S. applicants "as soon as possible" indicates lack of good faith recruitment. In the instant case, the Board held that Employer's 3 week delay in contacting the 2 applicants was untimely. Pizzeria and Restaurant Randazzo , 95-INA-152 (Dec. 27, 1996).

See also Farid Pakravan , 95-INA-9 (Nov. 26, 1996) (denying certification where Employer received the applications on June 7 and did not contact the applicants until June 22 because, given that the job requirements were fairly minimal, the hiring was purely local in nature and only 4 applications were at issue, Employer did not contact the applicants as soon as possible).

3. Presumption that delay contributed to applicant's unavailability

Employer's contact of applicants after issuance of the NOF is untimely and is presumed to contribute to the applicant's unavailability. Employer's failure to adequately explain the delay demonstrates a lack of good faith in the recruitment process and denial of certification affirmed. Auto International , 93-INA-146 (Oct. 27, 1994).

Employer sought labor certification for the position of "Computer Administrator and Purchasing Agent." The position was advertised on March 23-25, 1993, but the Employer did not contact any of the 13 applicants for interview until April 28, 1993. The Employer sent a letter to the New Jersey Department of Labor indicating that invitations were sent to all 13 applicants, but that six did not appear for their interviews. The CO denied certification and the Board affirmed. It reasoned that a delay of one month raises a presumption that the delay contributed to the unavailability of applicants and that the presumption may be rebutted by showing the delay was justified, but in this case, Employer failed to provide any excuse. See Creative Cabinet and Store Fixture, 89-INA-181 (Jan. 24, 1990). K&D Export Import Company, 95-INA-275 (Jan. 29, 1997).

Certification was properly denied where Employer waited 7 months in order to contact applicants. See Creative Cabinets & Store Fixture , 89-INA-181 (Jan. 24, 1990). Inwood Imports , 94-INA-605 (Aug. 31, 1995).

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

Farid Pakravan , 95-INA-9 (Nov. 26, 1996) (denying certification where the Employer received the applications on June 7 and did not contact the applicants until June 22 because, given that the job requirements were fairly minimal, the hiring was purely local in nature and only 4 applications were at issue, Employer did not contact the applicants as soon as possible).

Employer applied for certification for the position of Italian Specialty Cook. The CO issued a NOF, noting that 2 applicants informed the CO that, had they been contacted them in a timely manner, they may have been interested in the position. In addition, the 1st applicant stated that Employer told her that she was overqualified for the position. In rebuttal the Employer informed the CO that, although he had started trying to contact the 1st applicant on February 16, the applicant had been unavailable until February 23. Employer also contended that it was unable to contact the 2d applicant until March 2. The CO denied certification and the Board affirmed. Citing Creative Cabinet & Store Fixtures , 89-INA-181 (Jan. 24, 1990) (en banc), the Board noted that an unjustified delay in contacting U.S. applicants, when feasible to contact them earlier, is presumed to an applicant's unavailability. In the instant case, the Board held that Employer's 3 week delay in contacting the 2 applicants was untimely. Pizzeria and Restaurant Randazzo , 95-INA-152 (Dec. 27, 1996).

Any unjustified delays in contacting applicants is presumed to contribute to an applicant's unavailability and to demonstrate a lack of good faith recruitment. See Creative Cabinet and Store Fixtures , 89-INA-181 (Jan. 24, 1990) (en banc). Employer received 4 applications from U.S. applicants on October 15 and the resumes of 9 more on October 30. Employer justified this delay on the basis that he was ill and that he wanted to wait until receiving all applications before contacting applicants. However, the Employer did not report being ill until November 17. The Board found that there was sufficient time to contact the applicants before Employer reported being ill and that waiting until the Employer received all the applications was not a valid excuse. Easterner Motor Inn, Inc., t/a Best Western Motel , 94-INA-554 (Aug. 24, 1995).

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

Where Employer failed to contact qualified U.S. applicant for 3 months after initial recruitment period, Employer has failed to show that job was open to U.S. applicant. Delay was unjustified, giving rise to failures to complete good faith recruitment. Certification was properly denied. Eastern Motor Inn, Inc ., 94-INA-554 (Aug. 24, 1995).

Letters sent to applicants after the issuance of the NOF, that were not clear letters of employment, were not sufficient to cure the problem of Employer's failure to engage in initial good faith recruitment. El Torito Restaurant , 94-INA-602 (Aug. 29, 1995).

B. Justification or excuse for delay

1. General rule

Employer applied for certification for the position of Italian Specialty Cook. The CO issued a NOF, noting that 2 applicants informed the CO that, had they been contacted them in a timely manner, they may have been interested in the position. In addition, the 1st applicant stated that Employer told her that she was overqualified for the position. In rebuttal the Employer informed the CO that, although he had started trying to contact the 1st applicant on February 16, the applicant had been unavailable until February 23. Employer also contended that it was unable to contact the 2d applicant until March 2. The CO denied certification and the Board affirmed. Citing Loma Linda Foods, Inc. , 89-INA-289 (Nov. 26, 1991) (en banc), the Board noted that employers may avoid the implications of untimely contact where they provide a reasonable justification for the delay, a reasonable excuse showing that it did not contribute to the delay, or a combination of reasonable excuses or delay. In the instant case, the Board reasoned that, although the request for review Employer justified the delay on the grounds that he was ill and understaffed and that he was unaware that he had to contact the applicants within a certain amount of time, he had failed to include these arguments in his rebuttal. Pizzeria and Restaurant Randazzo , 95-INA-152 (Dec. 27, 1996).

2. Justification

Employer must contact U.S. applicants in a timely manner pursuant to 20 CFR §656.21(b)(7). Where the record does not indicate justification for the delay (such as large number of applicants), certification is properly denied. Coma Unida, 89-INA-289 (Nov. 26, 1991) (en banc). Burden is on employer to show or rebut findings that he responded in a timely manner. Angeles Garden Service , 93-INA-298 (Jan. 17, 1996).

3. Excuse

no new cases

4. Untimely contact; no justification or excuse proffered

Employer's attempt to contact U.S. applicants three weeks after receipt of resumes is untimely and certification properly denied. Robert White , 94-INA-173 (Feb. 14, 1995). See also Luso Italian Bakery , 94-INA-305 (May 11, 1995) (Employer waited 39 days after receipt of resumes to contact applicants).

An employer is under an affirmative duty to commence review and make all reasonable attempts to contact U.S. applicants as soon as possible. A good faith effort to recruit was not established where Employer attempted to contact the U.S. applicant by telephone for one month before attempting contact via certified mail. Gandhi Engineering, P.C. , 90-INA-355 (Mar. 11, 1992). See also Lifeline Health Services Int'l. Corp. , 92-INA-427 (Jan. 25, 1994); Park Place Sportswear, Inc. , 91-INA-340 (Jan. 29, 1993); Del Rey Printing , 92-INA-383 (Nov. 29, 1993); Michio Imai , 92-INA-382 (Dec. 14, 1993); Rouber International , 91-INA-44 (March 31, 1994) (no attempt to contact until nearly one month following receipt of resumes).

No good faith recruitment effort was established where Employer did not make his first attempt to contact applicants by telephone until 16 days after reciept of resumes and an additional 10 days thereafter to attempt to contact applicants by mail. Gabriel Rubanenko, M.D., Inc. , 92-INA-370 (Dec. 22, 1993).

No good faith efforts to recruit was established where Employer did not attempt to contact the U.S. worker during the recruitment period and made one unsuccessful attempt at contact after the recruitment period had ended. Cal-Tech Construction Co. , 91-INA-118 (May 4, 1992).

Employer failed to establish a good faith effort to recruit seemingly qualified U.S. workers where it submitted certified mail receipts for interview letters dated after issuance of the NOF and six months after the recruitment period. Hi Lume Corp., 90-INA-444 (Mar. 4, 1992).

A delay in contacting U.S. applicants of 20-33 days from receipt of their resumes does not constitute a good faith effort to recruit. Midamar Corp. , 90-INA-454 (Mar. 31, 1992).

A two month delay in the contact of a U.S. worker does not constitute a good faith effort to recruit. Select Import/Export , 91-INA-125 (May 4, 1992).

A three week delay in contacting applicants for a live-out general housekeeper was unacceptable. Jim Abrahams , 92-INA-381 (July 28, 1993). See also , Modern Kitchen Designs , 92-INA-351 (Feb. 28, 1994) (three week delay contacting applicants for electrician's position).

No good faith effort to recruit was established there Employer offered no justification or excuse for its failure to contact U.S. applicants until three and one-half weeks from receipt of their applications. The panel further noted that a lapse of five days from the date of the mailing of interview letters to the date of the first scheduled interview was an inadequate amount of time afforded to U.S. applicants to prepare for the interview. Nicolas Huizar , 91-INA-178 (May 18, 1992).

Interview letters to U.S. workers postmarked shortly before or on or after the scheduled interview date did not constitute good faith efforts to recruit, particularly where one applicant received his letter on the date of the interview and unsuccessfully attempted to reschedule the interview. Creative Building Concepts , 91-INA-71 (Apr. 30, 1992).

Employer failed to establish good faith recruitment where it did not contact six apparently qualified U.S. workers until more than 30 days after receiving their resumes. Universal Dust Collector, Inc. , 90-INA-315 (Dec. 18, 1991).

Employer failed to establish good faith efforts to recruit where it submitted vague, unsupported assertions of attempts to contact U.S. workers, there was a discrepancy between the return address on the envelopes sent to the applicants and Employer's place of business, no attempt was made to contact one of the U.S. workers, and there was a 20 day delay in contacting U.S. applicants. Sleuth's , 90-INA-460 (Apr. 30, 1992).

Good faith recruitment not established where Employer's revised basis for rejecting U.S. workers not found credible and where Employer failed to document any attempts to timely contact U.S. applicants. Envelope Manufacturing Corp. , 92-INA-356 (Nov. 29, 1993).

Good faith recruitment not established where Employer waited three weeks before contacting applicants and where interviews were scheduled on Saturday of Thanksgiving weekend. Rene Pasion , 93-INA-23 (Dec. 21, 1993).

A good faith effort to recruit was not established where Employer's interviewer left town on a business trip during the recruitment period and the applicants were referred to "employees in charge (who) did not know how to handle the referrals." The panel noted that, at a minimum, Employer's interviewer should have "properly instructed the employees as to how to handle the referrals or the job order should have been closed during the interviewer's absence and then reopened." Green Acres Manor , 91-INA-117 (May 18, 1992).

A delay of six to seven weeks between receipt of the resumes and contact of the applicants, without explanation, constitutes a lack of good faith recruitment. Pro Metal Products, 90-INA-354 (Aug. 4, 1992). See also Mike Martelli , 92-INA-385 (Aug. 23, 1993); Merv Adelson , 92-INA-191 (July 19, 1993) (a delay of one month from receipt of resumes to time of initial contact was unacceptable).

A 17 day delay in the contact of U.S. applicants evidences a lack of good faith recruitment given that there were only four applicants, the job required limited credentials, and "the position was advertised in a daily local newspaper as opposed to a national source wherein a longer delay before contact could be expected." Employer asserted only that it was in its busy season and the local job service delayed in transmitting the resumes as its justification for the late contact of applicants. However, the panel concluded that because Employer's own delay contributed to a delay in the contact of applicants, labor certification was properly denied. Com-Spec Properties , 91-INA-283 (Dec. 2, 1992).

Labor certification was properly denied where it was uncontroverted that letters requesting additional information from the applicants were postmarked January 25, received by the applicants on January 29, at which time they had two days, until January 31, to reply. With only six resumes submitted to Employer for the job of import manager, the belated contact "could well have signaled simply that this was not really an open job opportunity." Bear Corp. , 91-INA-70 (May 12, 1993). See also Mike Martelli , 92-INA-385 (Aug. 23, 1993) (three days from postmark of interview letters to date of interviews).

5. Untimely contact; explanation inadequate

Labor Certification properly denied where Employer did not attempt to contact U.S. applicants until 5-6 weeks after receipt of resumes. Employer's explanation, that it waited to collect all resumes before initiating contact, was inadequate. Baccarat Restaurant , 93-INA-465 (Jun. 13, 1994); See also Zaros Bread Basket , 93-INA-265 (Jun. 28, 1994) (purported contact dated two months after applications sent to Employer); Santillo Marble and Tile Contractor , 93-INA-218 (Jul. 26, 1994) (delay in contacting and following up contact with U.S. applicants, explanation that it lost resumes inadequate); Margaret Jean Callahan , 93- INA-523 (Aug. 25, 1994) (4 week delay in contacting applicants, explanation that attorney out of town for 3 weeks and Employer out of town 1 week insufficient); Sona Ratan (USA), Inc. , 93-INA-491 (Nov. 16, 1994) (contact only by letter mailed 32 days after receipt of applicants' resumes untimely); Stratford Motor Lodge , 93-INA-537 (Nov. 16, 1994) (failure to contact applicant for over one month and then providing applicant only three days to respond constitutes a lack of good faith recruitment); Picasso Travel , 93-INA-562 (Mar. 31, 1995) (contact made three weeks after return from travel with only explanation being that Employer was busy).

A six week delay in contacting U.S. applicants does not demonstrate a good faith recruitment effort. Moreover, Employer failed to justify such a delay based on statements that her hectic work schedule and requirements as a single mother precluded sooner contact. The panel noted that Employer was aware of her work and family schedule prior to advertising the position, yet she did not demonstrate any reasonable attempts to mitigate the effects of her schedule on the recruitment. Helen Herrick , 94-INA-168 (May 15, 1995).

Notwithstanding the fact that Employer complied with the 45 day deadline imposed by the local job service for conducting recruitment and filing its recruitment report, it did not establish good faith efforts to recruit U.S. workers. Employer delayed its contact of applicants for nearly 30 days and the panel noted that the "job offered (of secretary) requires few qualifications, the recruitment was local, and the number of applicants was small." Galiongee Mariner Service , 91-INA-194 (July 17, 1992). See also The Denture Office , 92-INA-213 (May 26, 1993); Chi Sun Lai , 92-INA-211 (Apr. 30, 1993); Accord Packaging, Inc. , 92-INA-203 (Apr. 30, 1993).

Employer's assertion that a delay in the contact of U.S. applicants was due to the fact that the General Manager "was involved with setting-up of other company restaurants" and was "called on an emergency case of another Bobby McGee's restaurant location" did not justify its untimely contact. Citing Loma Linda Foods, Inc. , 89-INA-289 (Nov. 26, 1991) (en banc), the panel concluded that the "Employer has not demonstrated that it could not have reasonably anticipated, mitigated or avoided the delay caused by the interferences." Bobby McGee's , 91-INA-39 (Apr. 15, 1992).

Employer's explanation for the four week delay in contacting U.S. applicants "that he had to call upon his son to help him contact and interview the applicants" was insufficient and labor certification was properly denied. Durward Myers , 91-INA-65 (May 11, 1992).

Employer was excused from a delay in contacting U.S. applicants over which it had no control where Employer's assertion that it did not receive the applications from the local job service in a timely fashion was uncontradicted in the record. However, a further delay of 14 days in the contact of U.S. applicants was not justified. The job had only a few requirements "thus the applicants could have been contacted almost immediately without a detailed review of their applications". The panel further noted that Employer's assertion that he was "busy" with other responsibilities did not constitute justification for the delay in the contact of U.S. applicants. Ivy Garmets, Inc. , 91-INA-135 (May 13, 1992).

Good faith efforts to recruit were not established where Employer delayed in contacting applicants for 30 days due to his work schedule. No detail was provided regarding the work schedule and, "[a]lthough the total number of applications were not insignificant, the job offered (of Secretary) requires few qualifications and the recruitment was local." The Denture Office , 92-INA-213 (May 26, 1993).

Employer failed to establish good faith recruitment where no effort was made to contact U.S. applicants for 30 days under the mistaken assumption that the burden was on such applicants to make the initial contact. The position of Overlock Sewing Machine Operator had minimal requirements and, therefore, U.S. workers "could have been contacted almost immediately." MEM Sportswear, Inc. , 91-INA-226 (Oct. 5, 1992).

Good faith recruitment for the job of shipping and receiving clerk was not established where the "Employer had the names and resumes of the applicants in its possession for at least eleven days before closing for a two week holiday, (but) it made no attempt to contact U.S. workers during that period." Fire, Inc. , 92-INA-80 (Apr. 7, 1993).

Employer failed to offer sufficient justification for its untimely contact of applicants (waiting five weeks from receipt of their resumes) where it merely asserted that the delay was caused by an office move. The panel noted that "[i]t is reasonable to assume that the office move, which took three weeks, was not a spur-of-the-moment event, but rather a planned event." The panel concluded that Employer could have delayed filing the labor certification application until after the move or could have advertised the psotion at a time near the end of the move to ensure timely contact. Pavillion Mortgage, Inc. , 92-INA-270 (June 2, 1993).

Labor certification was properly denied where Employer's excuse for failing to contact U.S. applicants within one month, that it did not understand its responsibility for promptly contacting applicants and that the state agency's letter was not clear in this regard, does not rise to the level of a credible excuse. The panel specifically contrasted this case from Jacob's Engineering Inc. , 88-INA-367 (July 17, 1989) which was wrongly cited by Employer as holding that a one-month delay in recruiting is prima facie not untimely. Fantasy Travel Tours , 93-INA-74 (Feb. 22, 1994).

Labor certification properly denied where Employer could not find applicants telephone numbers but did have addresses to contact them by mail. The panel dismissed Employer's contention that for security reasons she could not be expected to initiate contact by mail because that would necessarily require her to provide unknown applicants with her name, address and phone number. Such concerns cannot "stand as a bar to U.S. applicant contacts". Peggy Loiacono , 93-INA-138 (April 8, 1994).

Employer applied for certification for the position of Italian Specialty Cook. The CO issued a NOF, noting that 2 applicants informed the CO that, had they been contacted them in a timely manner, they may have been interested in the position. In addition, the 1st applicant stated that Employer told her that she was overqualified for the position. In rebuttal the Employer informed the CO that, although he had started trying to contact the 1st applicant on February 16, the applicant had been unavailable until February 23. Employer also contended that it was unable to contact the 2d applicant until March 2. The CO denied certification and the Board affirmed. Citing Rancho Liquor , 90-INA-520 (Dec. 3, 1991) (holding that delaying 21 days to interview only 4 applicants indicated lack of good faith recruitment); Midamar Corp. , 90-INA-454 (Mar. 31, 1992) (delaying 20-33 days held to be untimely recruitment); Modern Kitchen Designs , 92-INA-454 (Mar. 31, 1992) (holding that a 3 week delay in contacting applicants was untimely), the Board held that Employer's 3 week delay in contacting the 2 applicants was untimely. Pizzeria and Restaurant Randazzo , 95-INA-152 (Dec. 27, 1996). See also Catholic Cemetery of the Archdiocese of Washington, Inc. , 95-INA-70 (Dec. 2, 1996).

Where the Board found that the New York Department of Labor mailed resumes to the Employer in early March and that Employer received them in early March, where the Employer delayed until March 31 before calling the applicant, and where the applicant said that he was not interested in the position, where in response to the CO's request that Employer document other means of contacting the applicant, Employer responded, "well if we spoke to him personally and he responded after questioning...that he is `NOT interested' [sic] there was no point in pursuing it further..." then alien labor certification was properly denied because the response "begs the question" regarding what efforts Employer made to contact the applicant prior to March 3 and, given the small number of qualified U.S. applicants who applied for the position, Employer's excuse that it lacked "an elaborate clerical staff," did not constitute a valid justification for Employer's delay or his failure to try alternative means of contact. Cavalier's Bay Center, Inc., 95-INA-90 (Jan. 27, 1997).

Employer's claim that he attempted to contact applicant repeatedly by phone was inadequate because it was not supported by details of the times or circumstances of the calls. See also 13 IVB 2 a. Seven Seas Restaurant , 94-INA-549 (Oct. 31, 1996).

Kosher wholesale butcher did not contact or interview 5 applicants who appeared to be qualified or experienced ( see also 13 III B 1). Employer's claim that the applicants had no wholesaling experience was inadequate because if it were an important qualification it would have appeared in the ad. Master Purveyors, Inc. , 94-INA-545 (Nov. 14, 1996).

Employer did not contact US workers who met most of the job requirements. The workers later stated that they met all requirements. Employer's statement that the applicants lacked experience was conclusory and inadequate based on his failure to investigate. ( See also 13 III B 1). Kensico Properties , 94-INA-505 (Nov. 19, 1996).

6. Timeliness or justification for delay established

CO improperly based denial of certification on Employer's untimely contact of U.S. applicants. The CO found that Employers delay in contacting U.S. applicants was unreasonable as 34 days had elapsed between the advertisement and contact. The panel found this finding unfair as "it is difficult to see how applicants could be contacted before they were referred [to Employer] by the state agency." As a maximum of 18 days had elapsed between the time Employer received the resumes from the state agency, and such a delay does not, on its face, establish lack of good faith recruitment for a professional position such as accounting manager, timely contact was found. Kellogg Supply, Inc. , 93-INA-172 (May 11, 1994).

A panel held that Employer's contact with U.S. applicants 11 days after referral from the job service was timely. The CO challenged the contact of one applicant to state that the applicant did not timely receive an interview letter. The panel noted, however, that Employer sent certified letters to the applicants. Four of the applicants timely received the letter and only one did not. The panel thus concluded that "all letters were mailed in the usual course of business . . . and that the delay in delivery . . . was due to causes beyond the employer's control." Ganjian Inc. Marble & Granite Co. , 91-INA-166 (Aug. 21, 1992).

Labor certification was improperly denied where Employer delayed a job interview for only two or three days from the date it was originally scheduled. Playas de Rosarito Restaurant , 91-INA-122 (Feb. 1, 1993).

Labor certification was improperly denied where the delay in contacting U.S. applicants was "due solely to the actions of the State Job Agency." Calvert County Public Schools , 92-INA-186 (July 29, 1993).

Where a resume was mailed to Employer on Dec. 31, Employer validly claims that the resume did not arrive until Jan. 6 or 7 due to holiday mail delays, Employer telephones applicant on Jan. 14, and Employer contacts applicant by mail on Jan. 21, timely contact has been made (certification denied on another ground -- namely, the letter was not sent by certified mail). Bowman's Cleaners , 94-INA-626 (Jul. 26, 1996).

C. Professional or nonprofessional position

no new cases

D. Failure to contact applicants

Labor certification properly denied where Employer rejected 7 qualified U.S. applicants and failed to document good faith effort to contact any. The panel specifically noted that the Employer's statements purportedly documenting any attempted contact were "nebulous" and could not be definitively interpreted to determine whether Employer actually contacted each applicant. Moreover, Employer's contention that it could not contact certain applicants by mail because of no known address was not persuasive since addresses were included on the applicant resumes. Ekom Corp. t/a Neelam Restaurant , 93-INA-142 (May 4, 1994).

Labor certification properly denied where Employer failed to contact qualified applicants because no telephone numbers were provided to enable Employer to schedule interviews by telephone. Because alternative means of contact was available by mail, good faith recruitment was not documented. The panel dismissed Employer's contention that telephone contact was the only acceptable means of contact in order to fill the position quickly; "[b]eing in such a hurry to fill a position that [e]mployer refuses to contact an apparently qualified U.S. applicant by mail, is not a lawful job-related reason for rejecting that applicant . . ." Damas Atlantic, Ltd. , 93-INA-158 (May 4, 1994).

Labor certification properly denied where Employer admitted inadvertently failing to contact 2 possibly qualified U.S. applicants. Spellman High Voltage Electronic Corp. , 93- INA-273 (Jun. 27, 1994); See also The Zale Group , 93-INA-210 (Jul. 25, 1994) (labor certification properly denied where Employer inadvertently sent the letter requesting an interview to the wrong address; API Industries, Inc. , 93-INA-159 (Aug. 16, 1994) (no credible evidence of purported attempts to contact submitted); Abraham & Esther Marin , 93-INA-277 (Sep. 21, 1994) (failure to contact possibly qualified applicant, explanation that tried to contact prior Employer to verify qualifications first inadequate); Hall's Sign Company , 93-INA-124 (Aug. 29, 1994) (failure to contact possibly qualified applicant, proffered inconsistent explanations that applicant did not appear at scheduled interview unpersuasive); American Inn of Bethesda , 94-INA-44 (Oct. 5, 1994) (Employer's effort to contact possibly qualified U.S. applicants after issuance of NOF not good faith); Castle Wood Egyptian Farms, Inc. , 93-INA-349 (Employer rejected apparently qualified U.S. applicants without interview).

Labor certification properly denied where several of Employer's contact mailings sent to applicants contained blank pieces of paper. Employer's justification that "[e]ven if we might have made a mistake . . . our stationary envelope has not only our name and address but even our telephone number" was found insufficient justification. Photo Medium I6P, Ltd. , 92-INA-316 (Nov. 8, 1993)

Labor certification properly denied where Employer lost applicants' resumes and her follow up attempt at obtaining the necessary information for contacting them was properly deemed insufficient to establish good faith recruitment. Mrs. Mona Solomon , 93-INA-57 (Jan. 24, 1994).

Labor certification properly denied where Employer's justification for not contacting applicants was its own inadvertance. New York Association for New Americans, Inc. , 93-INA-103 (Feb. 14, 1994).

III. Contact/interview of qualified or seemingly qualified applicants

A. Applicant clearly not qualified

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 s/he meets all the job requirements, an Employer bears the burden of further investigating the applicant's credentials. Coventry Place , 95-INA-319 (Feb. 6, 1997).

Employer applied for certification for the position of Electronic Technician, the job duties including the detection of problems and the repair of microwave ovens. Employer required 2 years of experience. In its recruitment report, Employer noted it rejected 4 applicants without interview. The 1st applicant was rejected because, having in the past solely been employed by Eastern Airlines, his experience was "not related to our type of work." The 2d applicant was rejected because experience in industrial radio technology engineering management, and industrial electronic equipment did not "qualify him for the job." The 3d applicant was rejected because he lacked experience in repairing radios and microwave ovens. The last applicant was rejected because his experience was related to TV repairs. The CO issued a NOF proposing to deny certification on the grounds that Employer unlawfully rejected 4 U.S. applicants. In rebuttal, Employer stated that the 4 applicants possessed no experience in the repair of microwave ovens and that it was difficult to interview all applicants due to the "overwhelming" number of applicants. The CO denied certification and the Board affirmed. Citing Anonymous Management , 87-INA-672 (Sept. 8, 1988) (en banc), the Board noted that employers may reject applicants without interview where the applicant's resume reveals that he or she clearly lacks the minimum requirements for the position. However, in the instant case, the Board reasoned, the CO correctly found that the 4 applicants had at least 2 years of experience as Electronics Technicians and should have been contacted. Active Electronics, Inc. , 95-INA-160 (Dec. 23, 1996).

2. Expectation that resume includes career highlights

no new cases

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

1. General rule

Employer bears burden of proving contact with qualified applicants, especially where those applicants deny ever having heard from Employer. In addition, where telephone attempts are not successful, Employer has burden of trying, and proving alternate means of contact. Diana Mock , 88-INA-255 (Apr. 9, 1990). David Cohen , 94-INA-555 (Aug. 7, 1995).

Where U.S. applicants appear to meet job qualifications, employer must investigate further. Gorchev & Gorchev Graphic Design 89-INA-118 (Nov. 29, 1990) (en banc). Where applicant was qualified enough to be offered an interview, and Employer did not offer said interview, Employer has rejected U.S. worker for reasons other than just job related problems. Certification properly denied. See Microbuilt , 87- INA-635 (Jan 12, 1988). Call Business Systems, Inc. , 93-INA-519 (Aug. 29, 1995).

Where applicant's resume on its face indicates that applicant may be qualified, employer has a duty to investigate further, either by interview or otherwise. Where Employer has such duty, use of detailed, complex, interrogatories was designed to deter further interest by U.S. Applicant. CO properly held that Employer failed to demonstrate that it made a good faith effort to recruit U.S. workers. See Gorchev & Gorchev Graphic Design , 89-INA-118 (Nov. 29, 1990) (en banc). Goldberg Commodities, Inc ., 94-INA-314 (Aug. 31, 1995).

Where an applicant appears facially qualified, employer has a duty to investigate further and may not reject applicants out-of-hand. Gorchev & Gorchev Graphic Design, 89-INA-118 (Nov. 29, 1990) (en banc). Mission edical Clinic , 94-INA-231 (June 27, 1995).

Where applicant is facially qualified, employer has duty to investigate further and merely not simply dismiss the applicant without documentation of the applicant's inability to perform the job. BEM Systems, Inc. , 93-INA-487 (Nov. 29, 1994). The All Visual Company, Inc. , 94-INA-251 (June 22, 1995).

Employer failed to perform good faith recruiting when it did not investigate an applicant's credentials where that applicant's resume indicates a broad range of experience, education and training that raises a reasonable possibility that the applicant is qualified. Bankers Trust Company , 94-INA-265 (May 30, 1995).

Where an applicant's resume shows a broad range of experience, education and training, that raises a reasonable probability that the applicant is qualified, even if it does not state that he or she meets all the job requirements, an employer should further investigate the applicant's credentials by interview or otherwise. Dearborn Public Schools , 91-INA-222 (Dec. 7, 1993) (en banc). Employer rejected 1 applicant for the position of software research associate because the applicant had not already (although he was currently) taken a course in information management and because he "had extremely little experience in the field and he has he has no experience in developing utility program." However, the applicant's resume suggested that he had over 9 years of experience in information management, including experience as an application programmer, system administrator, and college teacher; he had experience writing software and know multiple programming languages, including assembly language and the applicant had a Master's Degree in electrical engineering from a Chinese university and is currently working on a doctorate in computer science. Certification was properly denied. Software Systems Technology, Inc ., 94-INA-299 (June 27, 1995).

Where a U.S. applicant could very well have experience in the organic/inorganic analyses of groundwater and soils samples and where Employer gives no indication that there was ever an attempt to interview this apparently qualified candidate to explore her credentials, the Employer's failure to interview the seemingly qualified candidate could have formed another basis for denial of alien certification. See Nancy, Ltd., 88-INA - 358 (Apr. 27, 1989) (en banc). Spectrum Analytical, Inc, 95-INA-324 n.1 (Jan. 19, 1997) (dictum).

For the position of "Staff Engineer," Employer required applicants to have a .S. degree in Civil Engineering and 1 year in the job offered or 1 year in the related occupation of "Quality Control Engineer." Employer required also that the applicant have related experience involving materials and construction inspection, testing of soil and concrete, use of "PRIMAVERA," and geotechnical inspections, design and review. One applicant for the position had an M.S. in Civil/Construction Engineering, had over 1 year combined experience as a construction field engineer and quality control construction inspector, and had knowledge of "PRIMAVERA." Employer rejected the applicant without interview because he had no geotechnical design and review experience, had no experience in preparing budgets and proposals, and had no experience in reviewing plans and specifications related to pipelines, retaining walls, basin, etc. In its rebuttal to the NOF the Employer justified the rejection without interview because the applicant's previous experience consisted of "minimal design work and other experience required by the office," because his writing skills were poor, because Employer had never heard of some of the experience the applicant listed, and because the applicant had experience that Employer did not need. The CO denied certification and the Board affirmed. The Board reasoned that the applicant's qualifications appeared to meet the minimum requirements, his experience was broad enough to warrant an interview, Employer speculated without seeking further clarifications, and Employer's contention that the applicant's resume and cover letter demonstrated poor writing skills did not provide an adequate explanation for the failure to interview the applicant. The Board reasoned that where an applicant's resume shows a broad range of experience, education and training that raises a reasonable probability 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 by interview or otherwise. See Gorchev & Gorchev Graphic Design , 89-INA-118 (Nov. 29, 1990) (en banc). Gentech Engineering Associates, P.A. , 95-INA-100 (Nov. 13, 1996).

For the position of "Manager, Gourmet Food Shop" Employer required 1 year experience in the job offered, speaking and writing knowledge of English, and fluency in Korean. An applicant was rejected without interview because his "experience was with Italian [sic] food shop, our firm deals in American gourmet food," because he did not read and write English and Korean, because someone at the limousine service for whom the applicant currently worked supervising 80 drivers told Employer that the applicant's attitude towards a number of the drivers was "hostile" that he exhibited "arrogance," that he "didn't take instructions from superiors well," and because he had been unemployed for long periods. The CO denied labor certification and the Board affirmed. The Board reasoned that the applicant's English language resume and his graduation from a Korean University with a degree in Economics demonstrated language skills, Employer did not make any reference to language problems in rebuttal (nor could it have known of any language problems without speaking to or interviewing the applicant), Employer failed to document with whom at the gourmet shop where the applicant previously worked he spoke to learn about the deficiencies in the applicant's experience, Employer failed to explain how experience with 1 type of gourmet shop would prevent an applicant from successfully working in another type of gourmet shop, the Employer inadequately documented his contact at the limousine service, Employer failed to explain why lack of courtesy with the employee drivers correlated to a lack of courtesy with a gourmet shop's customers, and the applicant's long unemployment cited by Employer was actually only 8 months, between March of 1979 and March of 1993. Where an applicant's resume shows a broad range of experience, education and training that raises a reasonable probability that 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 by interview or otherwise. Eastern Farm, Inc./Delmonico Gourmet Food Market , 95-INA-101 (Feb. 7, 1997).

Employer applied for certification for the position of "Account Representative" and was informed on at least 7 occasions that he would be required to return all signed resumes with documentation of recruitment results. Employer was also informed that it was Employer's responsibility to verify the employment status of each applicant. Not withstanding these instructions, Employer only supplied the resumes of the 5 applicants that it reported rejecting. According to unsigned written statements on the back of their resumes, these applicants were rejected because they did not speak Chinese, Mandarin Chinese, or Taiwanese. Employer justified these rejections by "merely" asserting that "none of these applicants have had any experience working with Chinese/Taiwanese customers...," that, in "order to successfully penetrate this market, the applicant will have had to have considerable experience working with this minority group...," and that none of these applicants had that experience. Employer justified a last rejection of a U.S. worker who spoke Chinese fluently on the basis that the applicant had no experience in financial planning. However, the language requirement and a requirement that the applicant be knowledgeable of all aspects of Chinese life, including customs, attitudes, and socio-economics were deleted from the Form ETA-750, and the newspaper requirements contained no such requirement. The CO denied labor certification and the Board affirmed. The Board reasoned that where applicants' resumes show a broad range of experience, education, and training, that raise a reasonable probability that the applicants are qualified, although the resumes do not say that they meet all the requirements, Employer bears the burden of further investigating the applicants' credentials. See Gorchev & Gorchev Graphic Design , 89-INA-118 (Nov. 29, 1990). Metlife , 95-INA-327 (Feb. 11, 1997).

Where an applicant's resume indicates that he or she meets the minimum requirements or indicates a degree of experience, education of training which likely qualify the applicant for the position, Employer bears the burden of further ivestigating the applicant's credentials. Gorchev & Gorchev Graphic Design , 89-INA-118 (Nov. 29, 1990) (en banc). Certification was properly denied where Employer waited 7 months in order to contact applicants. Inwood Imports , 94-INA-605 (Aug. 31, 1995).

See also Arusi & Goldschmied Diamonds , 94-INA-403 (June 22, 1995); Ruth Wolfe , 94-INA-406 (Jan. 29, 1996); Whitey's Restaurant , 95-INA-58 (Aug. 22, 1996); Kajima Engineering & Construction, Inc. , 95-INA-81 (Sept. 25, 1996) (denying certification for the position of project estimator where the applicant had a B.S. in Civil Engineering and approximately 20 years experience as an estimator, manager, and engineer, and where the applicant appeared to have far more extensive experience than the Alien before the Alien was hired); Daniel Costiuc , 94-INA-541 (Feb. 23, 1996); Agro International, Inc. , 94-INA-638 (Mar. 26, 1996); Bellport Country Club , 94-INA-575 (June 6, 1996). See also , Steak & Chops - the Post House , 94-INA-563 (Feb. 22, 1996) (denying certification where Employer rejected 5 applicants for the position of chef, all of whom had extensive experience and all of whom contradicted Employer's reasons for rejection); American Drug Stores, d/b/a Sav-On Drugs , 95-INA-37 (Oct. 3, 1996); Coticha Cheese Co. , 95-INA-27 (Mar. 14, 1996) (denying certification where Employer rejected an applicant for the position of plant manager because he did not sign certified letters but where the applicant appeared qualified); Worldwide Seafood Imports, Ltd. , 94-INA-526 (Aug. 1, 1996); Catholic Cemetery of the Archdiocese of Washington, Inc. , 95-INA-70 (Dec. 2, 1996); Joel Atlas Skirble & Assoc. , 94-INA-373 (May 25, 1995); Service Today, Inc. , 95-INA-85 (Oct. 1, 1996). King Wire Partitions , 95-INA-44 (Oct. 3, 1996) (denying certification where Employer initially justified the rejection of an applicant without interview for the position of cost accountant on the basis that he lacked experience, where after a second interview Employer indicated that he was also rejected on the basis that the applicant lacked hands-on accounting experience, that he was only looking for part-time work, and that there were discrepancies between his resume and interview statements because the applicant had over 5 years experience as a supervisor of cost accountants and the application permitted this experience, because an applicant's interest in part-time work is irrelevant unless he has been offered the job, and the fact that the applicant had not updated his resume from the date of his last employment is not a justification to reject the applicant).

Where an applicant's resume indicates on its face that he meets the stated job requirements and raises a reasonable possibility that the applicant is qualified, Employer clearly bears the burden of further investigating that applicant's credentials. See Gorchev & Gorchev Graphic Design , 89-INA-118 (Nov. 29, 1990). For the position of resident engineer, 1 applicant was rejected without interview because he had insufficient construction experience. However, the applicant had a B.S. and M.S. in Civil Engineering, an MBA, P.E., 15 years supervisory experience, 6 years as a project manager and 3 years as a chief engineer. The Board held that he should have been contacted. Port Authority of New York & New Jersey , 94-INA-312, (Jan. 22, 1996).

Where applicant met the minimum job requirements, Employer had duty to investigate further and not automatically reject applicant. Robert Farm , 94-INA-559 (Jul. 28, 1995).

Employer applied for certification for the position of Caretaker. Employer rejected 1 applicant (among 6 total applicants) because "he has no green card and is not a legal, permanent resident..." and because he had no experience "chopping trees." Disagreeing with Employer, the applicant argued that he was never contacted and that he had supplied citizenship documentation. The CO denied certification and the Board affirmed. Citing, Gorchev & Gorchev , 89-INA-118 (Nov. 29, 1990) (holding that where an applicant's resume shows a broad range of experience, education and training that raises a reasonable probability that the applicant is qualified, then Employer bears the burden of investigation further), the Board held that Employer should have inquired about this applicant's experience "chopping trees." Dr. Donna Rohlf, Ph.D. , 95-INA-148 (Nov. 21, 1996).

An applicant is considered qualified for the position if he or she meets the minimum requirements for the position specified by an employer's application for labor certification. The Worcester Co., Inc. , 93-INA-270 (Dec. 2, 1994). Employer rejected 1 applicant for the position of accountant in the recruitment report on the basis that he lacked auditing experience. Employer later stated that the applicant was rejected on the basis that the applicant had no "internal auditing experience." The Board affirmed the CO's denial of labor certification, reasoning that the applicant's resume actually reflected the required auditing experience and that the internal auditing experience was not job requirement for the position. Pouyan, Inc., d/b/a Dominos Pizza , 94-INA-414 (Oct. 12, 1995).

An applicant is considered qualified for the position if he or she meets the minimum requirements specified by an employer's application for labor certification. See The Worchester Co., Inc. , 93-INA-270 (Dec. 2, 1994). Employer rejected 1 applicant for the position of sample maker, children's clothing because he had 2 years experience as a sample maker but not as a sample maker in children's clothing. The Board determined the requirement of 2 years experience in the position of sample maker, children's clothing, as unduly restrictive. Accordingly, Employer unlawfully rejected the applicant. Florinda Fashions, Inc ., 94-INA-458 (Oct. 13, 1995).

An applicant is considered qualified for the position if he or she meets the minimum requirements for the position specified by an employer's application for labor certification. The Worcester Co., Inc. , 93-INA-270 (Dec. 2, 1994). Employer failed to provide sufficient documentation in support of its rejection of 11 U.S. workers for the position of geotechnical engineer. Only 3 applicants were interviewed, so Employer's assertion that 2 other applicants had no software experience was not made after reasonable inquiry. The rejection of 3 additional applicants on the basis that they lacked business training was invalid because that requirement was unsupported by business necessity. As to Employer's assertion that 1 applicant had no work authorization, more was required than a "general statement" that persons unknown had said that the applicant lacked authorization. Although 3 other applicants either lacked experience or undergraduate degrees, these applicants had impressive credentials and their rejections further add to the impression that there lacked good faith recruitment. Twin City Testing , 94-INA-415 (Oct. 12, 1995).

Applicants who meet the job requirements, but do not have experience in specific areas of the job description, raise the possibility that they may be qualified and thus should be interviewed. See Microbuilt Corp. , 87-INA-635 (Jan. 12, 1988). Certification was properly denied where Employer rejected 35 applicants for the position of controller. Most of the applicants had 4 year degrees and many had master's degrees and CPAs even though Employer only required a high school education. In addition most of the applicants had decades of experience while Employer only required 5 years of experience. Elf Enterprises , 94-INA-622 (Apr. 16, 1996).

Employer applied for certification for the position of Electronic Technician, the job duties including the detection of problems and the repair of microwave ovens. Employer required 2 years of experience. In its recruitment report, Employer noted it rejected 4 applicants without interview. The 1st applicant was rejected because, having in the past solely been employed by Eastern Airlines, his experience was "not related to our type of work." The 2d applicant was rejected because experience in industrial radio technology engineering management, and industrial electronic equipment did not "qualify him for the job." The 3d applicant was rejected because he lacked experience in repairing radios and microwave ovens. The last applicant was rejected because his experience was related to TV repairs. The CO issued a NOF proposing to deny certification on the grounds that Employer unlawfully rejected 4 U.S. applicants. In rebuttal, Employer stated that the 4 applicants possessed no experience in the repair of microwave ovens and that it was difficult to interview all applicants due to the "overwhelming" response. The CO denied certification and the Board affirmed. Citing Gorchev & Gorchev Graphic Design , 89-INA-118 (Nov. 29, 1990) (en banc), the Board noted that, where an applicant's resume shows a broad range of experience, education, and training that raises a reasonable probability that the applicant is qualified, even though the resume does not expressly state that the applicant meets all the requirements, an employer bears the burden of further investigating the applicant's credentials. In the instant case, the Board reasoned, the CO correctly found that the 4 applicants had at least 2 years of experience and should have been contacted. Active Electronics, Inc. , 95-INA-160 (Dec. 23, 1996).

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 requirements, an Employer bears the burden of further investigating the applicant's credentials. See Gorchev & Gorchev Graphic Design , 89-INA-118 (Nov. 29, 1990) (en banc). Employer rejected 2 applicants without interview for the position of cabinet maker on the basis that they lacked experience as cabinet makers although they had experience as carpenters. However, 1 applicant's resumes showed 10 years of experience as a cabinet maker. The other applicant had several years experience building kitchen cabinets, installing furniture in homes or offices, building cabinet doors, tables and chairs, and experience building cabinets, counter-tops, desks and drawers. Certification denied. Amos Construction, Inc ., 94-INA-455 (Oct. 6, 1995).

Where an applicant's resume shows a broad range of experience, education and training that raises a reasonable probability that the applicant is qualified, although the resume does not say that he or she meets all the requirements, an employer bares the burden of further investigating the applicant's credentials. Houston's Restaurant , 94-INA-487 (Feb. 13, 1996). See also DNT International, Inc ., 93-INA-463 (Mar. 15, 1996).

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 should further investigate the applicant's credentials by an interview or otherwise. See Dearborn Public Schools , 91-INA-222 (Dec. 7, 1993) (en banc). Employer received 3 resumes from U.S. applicants for the position of cabinet maker indicating that they had experience as cabinet makers. Employer stated that the applicants were not contacted either because of difficulty reaching the applicants or because it was unnecessary to reach them. Employer failed to contact the applicants by mail. Several applicants disagreed with Employer's statement that it was unnecessary to contact them. Certification was properly denied. Deluxe Mica Works , 94-INA-461 (Feb. 26, 1996).

Employer bears the burden of further investigating an applicant's credentials when the applicant's resume raises a reasonable possibility that the applicant is qualified. See Gorchev and Gorchev Graphic Design , 89-INA-118 (Nov. 29, 1990). Labor certification was properly denied where Employer rejected 1 applicant for the position of construction foreman because "he has acted as supervisor of supervisors more managerial, executive and not related to carpentry," because "applicant's educational and early work experience were related to architectural design and engineering. His employment since 1986 were administrative jobs as a project manager. He has no field construction experience." However, the applicant had over 10 years experience as an assistant construction manager. In addition, the applicant listed past duties as managing and supervising daily operations for complete gut rehabilitation," which indicated hands-on experience. Avanti Corp. , 94-INA-462 (Jan. 10, 1996).

An Employer must take steps to insure that it has lawful, job-related reasons for rejecting U.S. applicants, and not stop short of fully investigating an applicant's qualifications. See Gorchev & Gorchev Graphic Design , 89-INA-118 (Nov. 29, 1990) (en banc). Employer unlawfully rejected a U.S. applicant for the position of teacher on the basis that her resume did not indicate that she taught Punjabi to children. The applicant's resume indicated a M.A. in English, B.A. in Punjabi and experience as a Punjabi teacher for over 11 years in India. Furthermore, the applicant stated in a questionnaire that the applicant taught Punjabi for 12 years to children. Sikh Cultural Society of New York , 94-INA-560 (Aug. 23, 1995).

In a recent case, the Board cited Gorchev & Gorchev Graphic Design , 89-INA-118 (Nov. 19, 1990) (en banc) (mandating that employers investigate an applicant's credentials where a resume shows a broad range of experience, education, and training that demonstrates a reasonable probability that an applicant is qualified, even though he does not meet all the job requirements), in upholding a CO's denial of labor certification. Employer had applied for the position of "diamond assorter" and rejected an applicant because he "lacked proficiency in appraising diamonds for industrial and commercial use." Their basis for this rejection was the inability of the applicant to answer questions concerning "properties of diamonds or distinguish among different types of diamonds." Notable about the resume was the applicant's 4 years of experience as a diamond sorter. The Board reasoned that Employer failed to request that the applicant "provide verification of either his references or his educational credentials, even though the absence of such support was of such paramount importance as to be a major reason for Employer's rejection of this candidate..." Wedding Bands & Co., Inc. , 95-INA-248 (Jan. 6, 1997).

Employer applied for certification for the position of Tailor. Employer rejected 1 applicant because she lacked the required experience. The CO proposed to deny certification on the basis that the NOF instructed Employer to document its attempts to contact the applicant. In rebuttal, Employer documented nothing, although Employer did explain that the applicant's "resume indicated that she has no experience in sleep wear alterations," something "our application...specified..." as "necessary experience required on altering and finishing high quality `Night Gowns.'" Employer further argued that experience altering night gowns rather than the types of experience was a "relevant" difference. The CO denied certification and the Board affirmed. Citing Gorchev & Gorchev Graphic Design , 89-INA-118 (Nov. 29, 1990) (en banc), the Board held that Employer failed to sustain its burden of proof that the applicant's qualifications were not adequate to satisfy the requirements of the job. The Board noted that, "missing from this otherwise cogent argument is supporting evidence that explains in the context the difference in materials, the wear requirements, and the varying techniques used in altering..." different types of clothing. Grinnel Pajama Corp ., 95-INA-238 (Dec. 19, 1996).

Kosher wholesale butcher failed to make a good faith effort to recruit when he did not contact or interview 5 applicants whose resumes showed that they appeared to be qualified or experienced in the business. Master Purveyors, Inc. , 94-lNA-545 (Nov. 14, 1996).

Employer did not meet his obligation to investigate because he did not contact US workers who met most of the job requirements (they met Masters Degree and architectural experience requirements, not clear if they met stone-working experience requirement). Applicants later told a State Agency that they met all requirements. Kensico Properties , 94-INA-505 (Nov. 19, 1996).

Employer filed an application for labor certification for the position of "Elementary School Teacher" and the duties included the "Sacramental preparation of students." Employer required one year experience in the job offered. An alternative to the requirement of one year experience in the job offered was one year experience in the related field of "Teacher." Employer rejected 6 applicants on the basis that they lacked experience necessary for the Sacramental preparation of the students. The CO denied certification and the Board affirmed. The Board reasoned that Employer could not reject 6 applicants on the basis that they lacked experience in the "Sacramental Preparation of Students." Their resumes demonstrated that they met the alternative minimum requirement of one year as a teacher. The applicants' resumes showed a broad range of experience, education and training, which raised a reasonable possibility that the applicants were qualified, even if the applicants did not state that they met all the job requirements. The Employer should have further investigated their credentials by an interview or otherwise. See Dearborn Public Schools , 91-INA-222 (Dec. 7, 1993) (en banc). Sacred Heart School , 94-INA-510 (Nov. 14, 1996).

An applicant was ostensibly qualified for the position of "Tile Mason" but the Employer claimed initially that the applicant was uninterested in the work location. However, the applicant claimed that "I asked...[Employer] about the location of the job and told her that I would be able to work anywhere." The applicant further claimed that he was uninterested in the position because Employer's agent informed him on the telephone that the wage would be $12.00 per hour even though the advertised wage was $26.54 per hour. In rebuttal to the NOF Employer claimed that Employer's agent informed the applicant that the advertised salary "was in accordance with Department of Labor regulations although the Employer had initiated the application with a starting salary of $12.00, and therefore, would be [sic] the ultimate decision of the Employer as to the specific salary..." Employer claimed that its agent was "merely providing an administrative albeit tedious and time consuming, function of facilitating the prospective applicant to meet with the Employer..." The CO denied certification and the Board affirmed. The Board reasoned that the applicant's resume demonstrated a broad range of experience, education, and training that raised a reasonable possibility that the applicant was qualified, even if it did not state that he met all the job requirements and Employer should have further investigated the applicant's credentials by interview or otherwise. The Board viewed Employer's initial contact with the applicant as designed to discourage him from pursuing the position. See Dearborn Public Schools , 91-INA-222 (Dec. 7, 1993) (en banc). Striano Contracting Corp. , 94-INA-509 (Nov. 14, 1996).

Employer sought labor certification for the position of live-in domestic, its duties including general "housework, laundering, cleaning, cooking and child care." The Employer required 3 months of experience for the position and 1 of 4 applicants met that job requirement. Employer argued that the 1 qualified applicant was currently operating a day care business "that she was unwilling to give up." However, the applicant denied the Employer's assertion as "an absolute lie" and instead stated that she had told the Employer that she would be willing to give up her child care business for a live-in position of $300.00 per week. The CO denied certification and the Board affirmed. It reasoned that the applicant's resume raised a reasonable probability that the applicant was qualified and the Employer should have further investigated the applicant's credentials by an interview or otherwise. Jane R. Fuerst , 94-INA-506 (Nov. 14, 1996).

The Board held on appeal after a Motion to Reconsider that the case should be remanded. The CO failed to consider an Employer's vice president's assertion that an applicant "had a hard time understanding the interviewing officer and, when he answered the questions he, could not bring out his knowledge..." The vice president had further stated that the applicant "could not express ...[himself] in words...," although he was "academically intelligent." The Board disagreed with the CO's finding that a response submitted by the applicant wherein he wrote, "I have experience in civil/stru/soil eng'g...If I was not hired, there might have [sic] someone they thought more appropriate...I got letter [sic]...," demonstrated a command of the English language. Employer lastly stated that clients in the past have asked for replacements when faced with an employee who cannot speak English well. The Board reasoned that, even though where an applicant's resume demonstrates a broad range of experience and training that raises a reasonable probability that the applicant is qualified, even if it does not state that he meets all the job requirements, an employer should further investigate the applicant's credentials, Employer in this case satisfied its burden that the applicant was unqualified. Testwell Craig Labs of N.J., Inc. , 94-INA-512 (Dec. 2, 1996).

The only requirement for the position of "Bookkeeper I Bilingual," was 2 years of experience and an applicant was "ostensibly" qualified due to her experience as an assistant accountant and as "part-time bookkeeper and computer operator" (which was "was close enough to the position of bookkeeper to warrant an interview to ascertain what her exact duties were"). Employer rejected her application, arguing that the applicant's experience was as an assistant bookkeeper and as a computer operator. The Employer claimed to have obtained this information from the applicant's references, though the references denied having been contacted. The CO denied certification and the Board affirmed. It noted that the applicant's rejection was "based on the erroneous statement that her experience was as an `assistant bookkeeper' and as a computer operator alone without conducting any type of interview." The Board held that Employer did not conduct recruitment in good faith because the applicant's resume showed a broad range of experience, education, and training that raised a reasonable probability that the applicant was qualified, even if it did not state that she met all the requirements, and Employer should have further investigated the applicant's credentials. See Dearborn Public Schools , 91-INA-222 (Dec. 7, 1993) (en banc) and Gorchev & Gorchev Graphic Design , 89-INA-118 (Nov. 29, 1990). Wah Yuan Trading Corp. , 94-INA-507 (Nov. 14, 1996).

Employer sought alien labor certification for the position of "Monitor, Sleep-In, Household" and the state agency determined that one U.S. applicant was qualified for the position. However, Employer failed to either contact the applicant or submit a recruitment report (even though Employer did submit a letter addressed to the applicant and did submit a narrative recounting its recruitment efforts concerning another applicant). The CO denied certification and the Board affirmed. The Board reasoned that the applicant's resume demonstrated a broad range of experience, education, and training that raised a reasonable possibility that the applicant was qualified, even if it did not state that she met all the job requirements and Employer should have further investigated the applicant's credentials by interview or otherwise. See Dearborn Public Schools , 91-INA-222 (Dec. 7, 1993) (en banc); Gorchev & Gorchev Graphic Design , 89-INA-118 (Nov. 29, 1990). Cristina Clark , 94-INA-508 (Oct. 31, 1996).

2. Resume need not state possession of all qualifications

The fact that a resume does not list all of the requirements for the position does not excuse the employer's failure to contact applicants, if the resume raises a reasonable possibility that the applicants are qualified. See GE Aircraft Engines , 89-INA-12, 14 & 16 (Apr. 20, 1990). Certification was properly denied where Employer rejected 35 applicants for the position of controller. Most of the applicants had 4 year degrees and many had master's degrees and CPAs even though Employer only required a high school education. In addition most of the applicants had decades of experience while Employer only required 5 years of experience. Elf Enterprises , 94-INA-622, (April 16, 1996).

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

Applicant's resume and cover letter indicates experience in all types of painting and art restoration. As Employer's alternative requirement was 6 months experience in "restoration of church art painting" it was improper to reject applicant without an interview. St. Barbara's RC Church , 93-INA-48 (Jun. 7, 1994). See also New Era Foundation for International Development , 92-INA-406 (Jun. 5, 1994) (applicant's resume lists a range of experience and education raising possibility that applicant may have met the actual requirements); Tessa Lyn Solomon , 93-INA-332 (Jul. 28, 1994) (although resume did not list shorthand experience, broad scope of experience, education and training listed necessitated that Employer interview the applicant); J.N. Enterprises of New York, Inc. , 93-INA-500 (Mar. 8, 1995) (resume and cover letter raise a reasonable possibility that applicant is qualified and employer bears burden of further investigating credentials); Morrison Knudsen Corporation , 94-INA-111 (Mar. 14, 1995) (three U.S. applicants merited further consideration on the basis of their resumes, as each met Employer's core requirements); Promise Capital Corporation , 94-INA-36 (Apr. 28, 1995) (applicant with related experience and educational credentials beyond those required merited further consideration); Wilton Stationers, Inc. , 94-INA-232 (Apr. 20, 1995) (applicant with broad range of experience as record store manager could not be summarily rejected, without an interview, because resume did not specifically mention purchasing experience); Mathew Sebastian , 94-INA-194 (Apr. 19, 1995) (applicant with experience as "nanny/children/housekeeper" must be interviewed for "Live-in Housekeeper" position); Pop's Homestyle Cooking , 94-INA-138 (Apr. 28, 1995).

Labor certification properly denied where U.S. applicant's resume indicates a broad range of education, experience and training raising possibility that applicant meets minimum requirements. That Employer contacted applicant regarding a different position than the one advertised does not indicate that Employer engaged in a good faith recruitment effort. RGC Information Technology, Inc. , 93-INA-112 (Jul. 28, 1994).

Where a U.S. applicant's resume indicates at least the required two years management experience, based on operation of his own company in 1970 and 1984-1985, employer under obligation to pursue application in good faith manner. Because Employer failed to adequately document and/or describe the interview occurring after issuance of the NOF, when Employer stated it "re-contacted and re-interviewed" applicant, lack of good faith recruitment properly found. Westminister Volkswagen , 93- INA-315 (Aug. 29, 1994).

Labor certification properly denied where the panel found no evidence that a Textile Stylist with experience in menswear was unqualified for a position specializing in women's wear. oreover, as one applicant's resume also listed two years men's and women's wear fabric styling experience, he may have satisfied Employer's narrow interpretation of the necessary qualifying experience and Employer should have at least interviewed the applicant. The Worcester Co., Inc. , 93-INA-270 (Dec. 2, 1994).

Where applicant's resume does not expressly state that he meets all of the job requirements for the position , but does demonstrate that he has experience at least related to the job offered, employer bears the burden of further investigating the applicants credentials. Based on a follow-up questionnaire from the applicant, had Employer interviewed him Employer would have discovered that the applicant in fact does possess the necessary minimum requirements. BEM Systems, Inc. , 93-INA-487 (Nov. 29, 1994).

Applicants with related experience and education credentials beyond those required merit further consideration by Employer. See Promise Capital Corp. , 94-INA-36 (Apr. 28, 1995). Certification was properly denied where the Employer rejected 35 applicants for the position of controller. Most of the applicants had 4 year degrees and many had master's degrees and CPAs even though Employer only required a high school education. In addition most of the applicants had decades of experience while the Employer only required 5 years of experience. Elf Enterprises , 94-INA-622 (Apr. 16, 1996).

Labor certification properly denied where the applicant's resume lists five years experience in the job and generally demonstrates a broad range of experience and training raising a reasonable possibility that the applicant is qualified. Employer improperly rejected the U.S. applicant, without an interview, for lacking specific experience using key machines and planning store layouts since, assuming arguendo that lack of such experience renders an applicant unqualified, Employer was wrong to conclude that the applicant did not possess such experience based solely on his resume. Employer bears the burden of further investigating the applicants credentials. The Weck Corp. d/b/a/ Gracious Home , 93-INA-35 (Mar. 8, 1995).

Labor certification properly denied where Employer rejected a U.S. applicant for the position of Children's Librarian because she did not list experience operating certain equipment on her resume. The panel noted that "the ability to operate equipment such as photocopiers and microfilm readers is not included in the [DOT] for the position . . . and would not be expected to appear on the resume of an applicant interested in such a position." Consequently, assuming, arguendo , that business necessity was established for requiring such particular experience, Employer had an obligation to investigate the applicants qualifications. Clarke Free Public Library , 93-INA-330 (Apr. 27, 1995). See also Dac Data System Corp , 94-INA-147 (May 15, 1995) (Employer must further investigate applicants with broad range of experience despite fact that resumes do not list experience with certain specific electronics, assuming, arguendo , such specific experience was business necessity).

Citing Gorchev & Gorchev Graphic Design , 89-INA-118 (Nov. 29, 1990) (en banc), a panel affirmed the denial of labor certification where 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); McCluskey's Steak House , 92-INA-396 (Jan. 4, 1994) (Employer has obligation to further investigate credentials of applicant who meets alternative experience requirement).

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. applicants resume, 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 of qualifications" and, considering the applicants background as revealed by her resume, "the onus was upon employer to further investigate the applicants experience." See also Eckstein Associates , 93-INA-134 (March 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).

The CO properly denied Employer's application for labor certification where the Employer rejected without interview a number of applicants for the position of software engineer even though the applicants' resumes demonstrated that the applicants had sufficient experience, training, and education to have warranted further investigation by Employer. One applicant's resume indicated a B.S. in mechanical engineering with 22 credits in computer graphics and CAD/CAM; experience in developing CAD/CAM software with integrating, testing, and evaluating the overall functionality of the system; development of an interactive graphical interface; direct experience in interactive graphics which included networking numerical data, UNIX, DOS, and C' language experience and exposure to Medusa CAD. Another applicant's resume listed a B.S. in engineering with a major in electronics technology; 6 years experience in computer operations, programming, analysis, and testing; extensive background in digital and microprocessor system design, embedded software, solid state devices, and electronic communications, and software experience in UNIX and C' languages. Idea Courier , 94-INA-611 (July 26, 1996).

Where applicant does not state that he speaks language for which Employer has established business necessity, but where his resume indicates extensive experience in a multitude of jobs and areas where he would have used those languages in similar positions, and where Employer unjustifiably delayed in attempting to contact the applicant, certification was properly denied. Parbel, Inc ., 94-INA-300 (July 11, 1995).

4. Detailed subsidiary requirement

no new cases

IV. Manner of contact

A. Employer's contact of applicants

1. Elements of recruitment report

no new cases

2. Contact of former employer

Where an employer cannot contact a previous employer, it has an obligation to contact the applicant to find out why it was unable to do so. Bellport Country Club , 94-INA-575 (June 6, 1996). See also Daniel Costiuc , 94-INA-541 (Feb. 23, 1996) (denying certification where Employer could not contact an applicant's reference because the fact that Employer did not reach the reference at the number furnished by the applicant could have been due to inter alia a transposition of numerals or that the employer moved and because Employer's conclusion that the inaccuracy of the reference's telephone number made the applicant untrustworthy was ludicrous).

3. Contact of family member

Employer failed to establish good faith recruitment effort where only attempt to contact U.S. applicant by a telephone call wherein Employer contacted applicant's sister and where it was disputed whether Employer left any message for the applicant. Nano Sportswear , 94-INA-197 (May 8, 1995).

Employer failed to establish good faith recruitment effort where Employer merely spoke to applicant's father on the telephone and asserted that father indicated that the applicant was already employed and unavailable for the job. Artepasta , 94-INA- 134 (Apr. 28, 1995).

4. Call to only one of several telephone numbers provided

no new cases

5. Failure to attempt to obtain correct address or telephone number

no new cases

6. Confusion over location or date of interview

Employer sought certification for the position of Manager of Heavy Truck Garage. The position required experience as a manager of an automobile-heavy truck station. There were 5 applicants. Two were rejected despite having extensive experience as either managers or directors of transportation. Employer stated that it rejected 1 applicant because, when contacted by telephone, the applicant purportedly stated that he was already employed and was no longer interested. In response to the questionnaire, however, the applicant reported that he was told that the position was for a mechanic and that he would be repairing diesel engines. The applicant also reported that Employer told him to come in the next day for an interview and was inflexible in scheduling the interview for another day. Another applicant reported that after he requested a different interview date, Employer never called him back. The last applicant stated that he drove 65 miles for an interview with "Issac," but when he arrived, there was no one available to interview him. Based on the accounts of these 5 applicants, the panel found that the CO properly denied certification based on Employer's unlawful rejection of these applicants. Employer may not discourage US applicants by rigid interview schedules, confusing interview places or times, failing to interview them and requiring additional information from them over the telephone. The Board may give more weight to the accounts of U.S. applicants when they conflict with the accounts of Employer and when Employer's accounts are unsupported. Orland Truck Stop , 94-INA-612 (July 23, 1996)

7. Obligation to try alternative means of contact

Labor certification properly denied where Employer failed to follow up unsuccessful telephone contact made to the applicant with a letter. Jerry's Bagels , 93-INA-461 (Jun. 13, 1994). See also Gertrude Griboff , 93-INA-462 (Jun. 13, 1994); Niki Golod , 93-INA-354 (Jul. 26, 1994); Vanessa I. Park , 93-INA-323 (Jan. 25, 1995); Carlo's Cleaning Service , 94-INA-112 (Feb. 13, 1995); Martin Lara Plumbing Corporation , 93-INA-274 (Apr. 28, 1995); New York Furniture , 94-INA-192 (May 8, 1995); Artepasta , 94- INA-134 (Apr. 28, 1995).

Labor certification properly denied where Employer did not attempt to contact applicant by telephone following return of undelivered contact letter. While the applicant's resume did contain an incorrect address, it also included a corrected telephone number and alternative means of contact should have been tried. Divinia M. Encina , 93-INA-220 (Jun. 15, 1994).

Employer received applications from 8 U.S. workers on February 25, 1992. Employer attempted to contact each by certified letter on March 6, 1992. Only 2 of the 8 applicants contacted Employer and Employer did not attempt to contact the other 6 by telephone. Nevertheless, the panel concluded that Employer met its burden of showing good faith recruitment effort and granted certification. The panel noted that Employer followed-up with the applications of the 2 individuals who responded to the certified letter and Employer documented through signed certified mail receipts that all 8 applicants had received the initial letter of contact. Diana Woods , 93-INA-225 (Jul. 8, 1994).

Labor certification properly denied where Employer initially attempted to contact U.S. applicants at home and by telephone during business hours "when the employed would be working and the unemployed would be looking for work". Employer's failure to attempt to contact the applicants by mail until approximately one week later was insufficient to show good faith recruitment. Little Italy Pizzeria & Restaurant , 93- INA-488 (Aug. 25, 1994).

Labor certification properly denied where Employer maintained that she contacted apparently qualified U.S. worker by telephone but that applicant hung up on her. Employer conceded that she had poor English skills and she did not follow up telephone conversation with a letter. oreover, the record included a questionnaire form indicating that the applicant would have accepted the job. Imperial Fashion , 93-INA-314 (Oct. 24, 1994).

Good faith recruitment not shown where Employer unsuccessfully tried to contact U.S. applicant to request a new application where Employer misplaced original application. The Employer only attempted to contact applicant by phone and did not follow up with contact by mail. CMC Quality Concrete , 93-INA-108 (Oct. 25, 1994).

Labor certification denied where Employer left messages on two applicants' answering machines but failed to follow-up with letter contacting them by mail. Northeastern Lumber and Millwork , 94-INA-105 (Feb. 13, 1995).

Good faith recruitment not shown where Employer claims that it unsuccessfully attempted to contact U.S. applicant by telephone and to have traveled to applicant's home but provided no documentation of such efforts. Employer reasonably should have attempted to contact the applicant by certified mail. Isratex, Inc. , 94-INA-56 (Apr. 28, 1995).

Where the addresses of U.S. applicants were available, Employer failed to establish good faith recruitment as it only attempted to contact them by telephone three times but failed to mail any interview letters. L.G. Manufacturing, Inc. , 90-INA-586 (Feb. 5, 1992). See also Boerum Savvy Auto Care, Inc. , 93-INA-140 (Feb. 28, 1994); Saturn Plumbing , 92-INA-194 (Feb. 3, 1994); Mrs. Gil Steinberg , 93-INA-102 (Feb. 11, 1994) (unanswered phone calls not followed up by letter); Gutierrez Gardening , 91-INA-372 (Dec. 15, 1993) (attempt to contact by phone only); Francis Lee , 92-INA-274 (Oct. 26, 1993) (Employer admitted that he did not diligently pursue referrals whose telephone numbers he could not find despite having mailing addresses); Ceylion Shipping, Inc. , 92-INA-322 (Aug. 30, 1993); Roma Ornamental Iron Works, Inc. , 92-INA-394 (Aug. 26, 1993); Delmonico Hotel Co. , 92-INA-324 (July 20, 1993) (Employer left a message by phone with one applicant's sister; left message on answering machines of two other applicants); Gilliar Pharmacy , 92-INA-3 (June 30, 1993) (made only unanswered phone calls; no letters mailed); Surrey Transportation, Inc. , 92-INA-241 (June 2, 1993) (Employer conceded that it did not mail a letter and was unsure whether it attempted contact by phone); William Martin , 92-INA-249 (June 2, 1993) (Employer left a message with "a man" at the U.S. worker's telephone number but did not attempt alternative contact by mail); Allcity Auto Repairs , 91-INA-8 (Mar. 24, 1993) (left only an unanswered message); Warmington Homes , 91-INA-237 (Mar. 22, 1993) (applicant reported a "bad connection" on telephone and Employer never called back); Wells Laboratories, Inc. , 92-INA-162 (Mar. 12, 1993) (Employer allegedly left a message on answering machine which was unanswered but failed to attempt contact by mail); Almond Jewelers, Inc. , 92-INA-48 (Mar. 8, 1993); Fragale Baking Co. , 92-INA-64, 65 (Feb. 23, 1993) (Employer only left a message by telephone); MVP Corp. , 92-INA-58 (Feb. 1, 1993).

Labor certification was properly denied where it left an unanswered message on an answering machine. Berkley West Convalescent Hospital , 91-INA-371 (Feb. 1, 1993). See also K-J Machine Co. , 93-INA-71 (Apr. 12, 1994).

Labor certification properly denied where applicant provided brother's phone number as contact number and where Employer relied on brother's third party comments as the sole basis for not pursuing applicant's application. Lori Singer , 93-INA- 168 (Apr. 12, 1994).

The Employer failed to establish good faith efforts to contact a U.S. applicant where it "reported only that it had sent him a letter and received no response." The Employer made no effort at a "follow-up attempt to contact the applicant by telephone or by certified mail." H & H Wilson Sales Corp. , 91-INA-95 (May 13, 1992). See also Pro-Kern Industries , 91-INA-325 (Nov. 25, 1992); Koo, Chow & Co ., 91-INA-134 (June 19, 1992).

The employer has not established a good faith effort to recruit where it "does no more than make a unanswered phone call, or relies in a statement by an unidentified person that the applicant is at work . . .." The panel noted that the applicants' addresses were in the record and "certified letter would have been a minimally acceptable effort." G.C.M. Iron Works, Inc. , 91-INA-81 (Mar. 27, 1992). See also Mr. and Mrs. Jay Desjardins , 93-INA-26 (Jan. 24, 1994) (telephone numbers allegedly disconnected and alternative manner of contact was in order to show good faith recruitment); Hawtal Whiting, Inc. , 92-INA-86 (Feb. 23, 1993) (interview letters sent by regular mail and not certified mail which would have enabled Employer to document receipt by U.S. workers); Eckstein Associates , 93-INA-134 (Mar. 31, 1994); British Thermal Systems, Ltd. , 91-INA-274 (Jan. 6, 1993); Garmen Assoc ., 91-INA-143 (July 14, 1992).

Employer did not establish good faith efforts to recruit where its report stated that, with regard to one U.S. applicant, "three messages were left with no response." The panel noted that "[t]here was no record of the dates and times of the telephone calls, where the telephone calls were placed, with whom messages were left, nor what the context of the message was." Conpipe, Inc. , 91-INA-348 (Nov. 25, 1992).

Labor certification was properly denied where the Employer condeded that the applicant was qualified, but rejected the applicant for failure to provide verification of references where the Employer afforded the applicant insufficient time to respond to its request. Specifically, Employer sent a letter dated January 5 which was received by the applicants on January 10 and a January 15 deadline for submission of the information was mandated. The panel held that Employer should have attempted contact by phone. Seniors Too, Inc. , 92-INA-166 (Mar. 18, 1993).

Labor certification was properly denied where Employer did not provide copies of the interview letters it allegedly sent to U.S. applicants nor any certified mail receipts or documentation that it attempted to contact the applicants by telephone. M.D.O. Development Corp. , 92-INA-326 (July 19, 1993).

No good faith efforts to recruit were established where a U.S. applicant was "temporarily turned away" from an unscheduled interview, told to leave his card with the local job service, and the Employer then stated that it unsuccessfully tried to contact the applicant by telephone for a future interview. The panel noted that the CO had no apparent problem in contacting the applicant by mail and, thus, "Employer's actions prevented (the U.S. applicant) . . . from pursuing the position offered." Newway Auto Sales & Parts , 91-INA-352 (Dec. 16, 1992).

No good faith effort to recruit was established where Employer did not send its interview notices by certified mail and failed to comply with the CO's request that it provide an account of the dates and places of the interviews. David Hamberger, Inc. , 91-INA-379 (Jan. 11, 1993).

Where Employer did not follow up initial efforts with multiple phone calls, did not ever attempt to send certified mail, and only initially called during the day, when applicants might have been at work or seeking work, Employer did not carry its burden of investigating qualified applicants and rejected them for other than lawful, job related reasons. Cracovia General Contracting, Inc. , 94-INA-296 (June 27, 1995).

Employer must make multiple attempts to contact potentially qualified applicants and must document its attempts to do so. Paterson Board of Educ. , 88-INA-88 (April 21, 1988). Domenico Marino , 94-INA-245 (July 19, 1995).

One unsuccessful attempt at contact by phone is not sufficient to demonstrate good faith on the part of an Employer at recruiting a U.S. workers for the offered position. Ramineh & Fani Certified Public Accountants , 94-INA-377 (June 5, 1995).

Employer must follow up unsuccessful telephone attempts to contact U.S. applicant with certified mail, or employer has rejected worker for other than lawful, job related reasons. Big Drop Peoples Sportswear , 94-INA-515 (Oct. 30, 1995).

See also Daniel Costiuc , 94-INA-541 (Feb. 23, 1996); Coticha Cheese Co. , 95-INA-27 (Mar. 14, 1996) (denying certification where Employer rejected an applicant for the position of plant manager because he did not sign certified letters mailed to him but where there was no indication that Employer attempted to contact the applicant by phone after the letters were returned); D&G Landscpaing , 94-INA-542 (Mar. 5, 1996) (denying certification where Employer rejected an applicant for the position of landscaper because he was overqualified and where the Employer stated that it had tried after the first interview to "contact the applicant for knowledge of the job" but was unable by telephone because there was no need to contact an applicant for the 2d time to find out his knowledge of a position if he was overqualified); Worldwide Seafood Imports, Ltd. , 94-INA-526 (Aug. 1, 1996).

Where to contact an applicant for the position of Vice President/International Business, Employer leaves one or two messages on an answering machine of applicant that Employer admitted was at least minimally qualified, then the applicant was unlawfully rejected because 2 messages was not sufficient to establish good faith recruitment. A certified letter was required. Employer's lack of knowledge of regulations and rules was deemed not a sufficient defense. Eastern Technologies, Ltd ., 94-INA-137 (July 17, 1995).

Employer applied for alien labor certification for the position of "maintenance mechanic," the job duties including, "will inspect and maintain car wash equipment in good working order; [m]ake repairs on . . . machinery." The CO requested documentation of Employer's recruitment of U.S. workers. Employer did not provide a copy of a letter allegedly sent to a U.S. applicant. The CO denied certification and the Board affirmed. The Board concluded that Employer did not make a good faith effort to recruit where it had the applicant's address, but did no more than make unanswered phone calls because "[i]t is well established that in order to establish good faith recruitment, an Employer has an obligation to try alternative means of contact." See Yaron Development Co., Inc. , 89-INA-178 (Apr. 19, 1991); Gilliar Pharmacy , 92-INA-3(June 30, 1993); Allcity Auto Repairs , 91-INA-8(Mar. 24, 1993). Valley Gas Co. , 95-INA-291 (Dec. 19, 1996).

One unsuccessful attempt at contact by phone in not sufficient to demonstrate good faith on the part of an Employer at recruiting a U.S. worker for the offered position. See The Weck Corp. d/b/a Gracious Home , 93-INA-35 (Mar. 8, 1995). In rebuttal, and not in the recruitment report, Employer reported that it tried to contact 1 applicant by phone. Notable was the fact that in the recruitment report, Employer documented the attempt to contact other applicants by certified mail. Ramineh & Fani Certified Public Accountants , 94-INA-377 (June 5, 1995).

Reasonable and good faith efforts to contact potentially qualified U.S. applicants may require more than a single type of attempted contact. See Dianna ock , 88-INA-255 (Apr. 9, 1990). Employer received 3 resumes from U.S. applicants for the position of cabinet maker indicating that they had experience as cabinet makers. Employer stated that the applicants were not contacted either because of difficulty reaching the applicants or because it was unnecessary to reach them. Employer failed to contact the applicants by mail. Several applicants disagreed with the employer's statement that it was unnecessary to contact them. Certification was properly denied. Deluxe Mica Works , 94-INA-461 (Feb. 26, 1996).

When an employer's attempt to contact an applicant by telephone is unsuccessful, a certified letter is a minimally acceptable additional effort. See Any Prototype, Inc. , 90-INA-410 (Jan. 16, 1992). Employer received 3 resumes from U.S. applicants for the position of cabinet maker indicating that they had experience as cabinet makers. Employer stated that the applicants were not contacted either because of difficulty reaching the applicants or because it was unnecessary to reach them. Employer failed to contact the applicants by mail. Several applicants disagreed with the employer's statement that it was unnecessary to contact them. Certification was properly denied. Deluxe Mica Works , 94-INA-461 (Feb. 26, 1996).

Contact of an applicant by telephone is inadequate to show good faith recruitment when the Employer fails to document the dates of the telephone calls, the substance of the telephone messages, or that Employer attempted to contact the applicant by alternative means. See Yaron Development Co., Inc. , 89-INA-178 (Apr. 19, 1991) (en banc). Employer rejected 1 applicant for a position in a fast food restaurant because the applicant lacked interest and because he never returned a call. However, the Board affirmed the CO's denial of certification because Employer failed to provide internal records of telephone messages or proof of attempts to contact the applicant through other means, because the applicant informed the CO that he had been interviewed but that he was rejected for lack of steam oven knowledge, because in rebuttal Employer admitted that the applicant had been interviewed and said that the interview had been overlooked in recruitment and because the Employer's unsupported arguments regarding attempts to contact applicants are inadequate to establish good faith recruitment. Kentucky Fried Chicken , 94-INA-442 (Oct. 6, 1995).

An Employer must demonstrate that it has followed up unsuccessful telephone contacts by certified mail. See Jerry's Bagels , 93-INA-461 (Jan. 13, 1994). Employer failed to document that he attempted to contact an applicant by mail. Alleged messages that Employer left on the machine, even if true, would be inadequate to meet this obligation of making reasonable efforts to contact applicants. Big Drop People's Sportswear , 94-INA-515 (Oct. 30, 1995).

Merely leaving messages on answering machines is inadequate to meet Employer's obligation of making reasonable efforts to contact applicants. See Berkely West Convalescent Hospital , 91-INA-371 (Feb. 1, 1993). The Employer failed to document that he attempted to contact an applicant by mail. Alleged messages that Employer left on the machine, even if true, would be inadequate to meet this obligation of making reasonable efforts to contact applicants. Big Drop People's Sportswear , 94-INA-515 (Oct. 30, 1995).

An employer must demonstrate that it has followed up unsuccessful telephone contacts by certified mail. Jerry's Bagels , 93-INA-461 (Jan. 13, 1994). Employer argued that he had left adequate and timely messages on an applicant's answering machine. However, Employer did not document that he tried to contact the applicant by mail such that labor certification was properly denied. Big Drop People's Sportswear , 94-INA-515 (Apr. 17, 1996).

Employer's obligation to make reasonable efforts to contact applicants is not satisfied merely by leaving messages on an answering machine. See Berkely West Convalescent Hospital , 91-INA-371 (Feb. 1, 1993). The Employer argued that he had left adequate and timely messages on an applicant's answering machine. However, Employer did not document that he tried to contact the applicant by mail such that labor certification was properly denied. Big Drop People's Sportswear , 94-INA-515 (Apr. 17, 1996).

In its application for labor certification for the position of "Maintenance echanic" at a car wash business, Employer failed to document that it sent a letter (by, for example, submitting postal receipts that prove the letter was sent) to a U.S. applicant. It appeared that Employer did no more than make telephone calls to the applicant, which went unanswered, even though the applicant's address was in the record. In addition, the applicant reported not having received a letter from Employer. The Board affirmed the CO's denial of labor certification, reasoning that Employer had not demonstrated a good faith effort to recruit because employers have an obligation to try alternative means of contact. An employer has not established a good faith effort to recruit where it does no more than make unanswered phone calls. Under the circumstances, a certified letter would have been a minimally acceptable effort. Valley Gas Company , 95-INA-291 (Dec. 19, 1996).

Where Employer sent 8 letters to applicants for the position of "Auto echanic" by regular mail dated December 16, where all of the applicants appeared from their resumes to be qualified for the position of "Auto Mechanic," where each applicant took the time to submit resumes and where none of the applicants showed up to be interviewed until "one...was interviewed almost 2 months later, then alien labor certification was properly denied because, rather than assume that none of the U.S. applicants was interested, Employer should have tried an alternative means of contact, such as by telephone. See Jerry's Bagels , 93-INA-461 (June 13, 1994) (denying certification where an employer failed to follow up on an unsuccessful telephone call by letter). Tilden Car Care Center , 95-INA-88 (Jan. 27, 1997).

Employer did not prove good faith recruitment when his recruitment efforts consisted of calling applicant's spouse one week following receipt of applicant's resume and then sending a letter by regular post rather than certified mail one week later. Bowman's Cleaners, 94-INA-00626 (Jul. 26, 1996).

Employer sent only one letter to applicant which did not meet Employer's obligation to try an alternative means of contact should the initial attempt fail. Jacob Breakstone, 94-INA-534 (Aug. 1, 1996).

Employer failed to make the required attempt to contact applicant by mail upon the discovery that he was not able to contact applicant by phone. Seven Seas Restaurant , 94-INA-549 (Oct. 31, 1996).

8. Discouragement of applicants

Labor certification properly denied where only applicant supplied Employer with extensive information indicating that individual may be qualified for the position, yet Employer contacted applicant by certified mail requesting additional information rather than calling applicant in for interview. The panel concluded that where applicant supplies information indicating potential qualification for job and total number of applicants relatively small, "it behooves such employer to interview the applicant...requiring an extra screening step will be given strict scrutiny because of its chilling effect on U.S. applicants interested in the position." Therapy Connection , 93-INA-129 (Jun. 30, 1994).

Labor certification properly denied where Employer screened applicants to determine their immigration status prior to interview. Employer should have interviewed apparently qualified applicants first, at which time immigration status could have been reviewed. Prescreening as done by Employer had potential of discouraging qualified applicants. Oriental Healing Arts Institute , 93-INA-75 (Sep. 26, 1994).

Denial of certification reversed where Employer followed-up review of 37 applicants' resumes with a letter to each applicant specifically noting deficiencies in their experience as stated in their resumes and then clearly and unequivocally requesting that each applicant contact Employer for an interview if they indeed have the work experience which appears to be missing from their respective resumes. Indarjit Jadoo , 93-INA-492 (Nov. 29, 1994).

The Employer's rigid interview schedule, which could not be met by the U.S. applicant, had a deterrent effect particularly where the applicant attempted to accommodate Employer in scheduling the interview and made "repeated unsuccessful attempts at . . . telephone contact with Employer . . .." Nitto Denko American, Inc. , 91-INA-93 (Apr. 1, 1992).

The Employer did not engage in good faith recruitment wherein a U.S. worker was told that he would be placed on a three week probationary period in a telephone interview but the probationary period was not a stated requirement. As a result, the U.S. applicant felt that a permanent job was not being offered to him. Cabrege, Inc. , 91-INA-260 (Sept. 2, 1992).

Labor certification was properly denied where the Employer conceded that it told a qualified U.S. worker that no job was available thereby discouraging the applicant. Wittek Development Corp. , 91-INA-307 (Oct. 19, 1992).

Labor certification was properly denied where two applicants reported that they contacted Employer for an interview but, as noted by the panel, "were rebuffed with the information that it had been filled." Stewart-Olsen Development, Inc. , 92-INA-7 (Mar. 23, 1993).

Employer failed to establish business necessity for its "two-year secretarial school education" requirement and, although Employer did not reject any applicants for lack of this requirement, labor certification was properly denied because "the requirement has the effect of discouraging experienced secretaries from applying for the job." Wells Laboratories, Inc. , 92-INA-162 (Mar. 12, 1992).

The panel remanded a case where the Employer required only general experience as a seamstress but the advertisements could have discouraged U.S. applicants by requiring more specialized experience. Golden Ross Orthopedic Manufacture , 91-INA-335 (Oct. 1, 1992).

Labor certification was properly denied where "letters contacting the prospective U.S. workers were sent by the Employer's attorney, in law firm stationary, without mention of Employer or the available position" and Employer failed to demonstrate that the attorney was normally involved in the hiring process in a company which employs approximately 50 individuals. K & S Sportswear , 91-INA-52 (Dec. 9, 1992).

Certification was properly denied where instead of promptly reviewing 61 U.S. applicants resumes to determine whether they meet Employer's minimum requirements, Employer sent letters to the applicants asking them to demonstrate their legal right to work in the U.S. Employer's lack of good faith recruiting was further shown by its scheduling up to six applicant interviews at the same time and asking those applicants who did show for an interview to first contact a physical therapist to determine the physical requirements for the position. Percy Solotoy , 92-INA-331 (Nov. 9, 1993).

Where Employer sends only a one sentence letter invitation to "an interview" with no indication of details or job specifics, Employer is not engaged in good faith recruiting efforts and is attempting to discourage a possibly qualified worker. Golden Ross Orthopedic Manufacturing Co ., 93-INA- 556 (Aug. 8, 1995).

Employer failed to recruit workers in good faith where it sent follow-up letters to applicants requiring the applicants to submit excessive information, including university academic records, when no education was required for the job, and letters of reference from employers with regard to any position in the industry related to the position. Requiring documentation such as that required here had a chilling effect, which discouraged U.S. applicants from continuing to pursue the position. The panel noted that in fact none of the U.S. applicants responded to the letter. Ryan, Inc. , 94-INA-606 (Sept. 12, 1995).

Employer applied for certification for an engineering position. In its advertising it required experience inter alia designing medical devices. However, the Alien did not have this experience labor certification properly denied. The Board found that treating the Alien more favorably than other applicants would have a chilling effect on U.S. applicants who may not have experience designing the medical devices. Applied Medical Resources , 94-INA-183 (July 17, 1995). See also Agro International, Inc. , 94-INA-638 (Mar. 26, 1996) (denying certification where Employer required the applicant to bring their university transcripts to the interview for the position of verification specialist - commercial notations, because the application for certification required no specific educational experience).

Employer sought certification for the position of Manager of Heavy Truck Garage. The position required experience as a manager of an automobile-heavy truck station. There were 5 applicants. Two were rejected despite having extensive experience as either managers or directors of transportation. Employer stated that it rejected 1 applicant because when contacted by telephone, the applicant purportedly stated that he was already employed and was no longer interested. In response to the questionnaire, however, the applicant reported that he was told that the position was for a mechanic and that he would be repairing diesel engines. The applicant also reported that Employer told him to come in the next day for an interview and was inflexible in scheduling the interview for another day. Another applicant reported that, after he requested a different interview date, Employer never called him back. The last applicant stated that he drove 65 miles for an interview with "Issac," but when he arrived, no one was available to interview him. Based on the accounts of these 5 applicants, the panel found that the CO properly denied certification based on Employer's unlawful rejection of these applicants. Employer may not discourage US applicants by rigid interview schedules, confusing interview places or times, failing to interview them and requiring additional information from them over the telephone and the Board my give more weight to the accounts of U.S. applicants when they conflict with the accounts of Employer and when Employer's accounts are unsupported. Orland Truck Stop , 94-INA-612 (July 23, 1996).

Discouraging massage therapist applicants from taking a job by telling them it is not "full time" as advertised, that the salary is lower than that which was advertised, and that there is the possibility of catching an infectious disease, is a failure to make a good faith effort to recruit because an employer should not discourage applicants. Diagnostic edical Assoc. , 94-INA-548 (Oct. 31, 1996).

Employer failed to make a good faith effort to recruit a live-in caretaker when he requested that each applicant submit a written experience statement and sent only one letter to the applicant who wrote such a statement; such a request is seen as discouraging applicants. Jacob Breakstone , 94-INA-534 (Aug. 1, 1996).

The following referenced made in a follow-up letter to applicants are attempts to discourage US applicants: (l) reference to the DOT; and (2) reference to a background check and to the fact that all applicant's documents would be sent to DOL per Federal Regulations. John C. editz , 94-INA-572 (Sep. 4, 1996).

B. Applicant's contact of employer

1. Means of contacting employer

no new cases

2. Letter placing burden on applicants to contact employer

Employer fails burden of showing good faith recruitment where he simply told applicants to call on their own and set up interviews when applicants came to fill out application. Clean Machine , 94-INA-408 (Jan. 22, 1996).

3. Sufficiency of time to respond

Labor certification properly denied where Employer's initial contact letter, dated Friday, June 9, scheduled interview for Monday, June 12. Employer's second letter, sent approximately 1 month later, was insufficient to correct the initial recruitment defect. Hervco Contractors , 93-INA-261 (Jun. 3, 1994).

Labor certification properly denied where applicant did not dispute Employer's contention that she did not show up for interview, but claimed that contact letter arrived too close to scheduled interview date for her to be available. Employer failed to respond to the CO's request for an explanation as to when the contact letter was sent and when the interview was scheduled. Riverside Convalescent Hospital , 93-INA-255 (May 24, 1994).

C. Evidentiary matters

1. Burden of proof

Employer must contact U.S. applicants in a timely manner pursuant to 20 CFR §656.21(b) (7). Where the record does not indicate justification for the delay (such as large number of applicants), certification is properly denied. Coma Unida, 89-INA-289 (Nov. 26, 1991) (en banc). Burden is on employer to show or rebut findings that he responded in a timely manner. Angeles Garden Service , 93-INA-298 (Jan. 17, 1996). See also Diamond Foods , 95-INA-42 (Oct. 2, 1996) (denying certification where the Employer contended in rebuttal that he told no applicants that the position was filled, but where 2 applicants stated in the questionnaire that they were told the position was filled, where the Employer delayed interviewing 1 applicant who repeatedly contacted the Employer, where the Employer noted the rejection of an applicant on the basis of lack of qualifications, but where the applicant denied that he was unqualified).

2. Credibility and weight of evidence

a. Sufficiency of recruitment report

Employer's failure to offer any explanation for its inconsistent statements regarding whether a U.S. applicant originally responded to the recruitment justifies finding that Employer did not undertake a good faith recruitment. Connecting Point, Inc. , 93-INA-318 (Dec. 2, 1994).

The Employer asserted that it contacted a U.S. worker by telephone and then by letter, a copy of which was in the record. The CO disregarded the Employer's statements to argue that certified mail was the only means by which the Employer could prove its contact with the U.S. applicant. A panel disagreed to state that "a C.O. is at liberty to contact that U.S. applicant whom he/she believes was never contacted by an Employer, and should not wantonly disregard Employer's otherwise documented assertion to the contrary." Lotus Corp ., 91-INA-203 (July 28, 1992).

The Recruitment Report was insufficient where Employer did not produce the documentation requested by the CO showing the times and circumstances of unsuccessful phone calls to a US applicant. Seven Seas Restaurant , 94-INA-549 (Oct. 31, 1996). See also Livia Helmer Shechtman, M.D. , 94-INA-543 (Feb. 22, 1996); WM Auto Rebuilders , 95-INA-36 (Oct. 1, 1996).

b. Conflicting accounts by the employer and U.S. applicants

Where Employer's contention that 3 applicants failed to show up for different interviews is contradicted by the applicants' independent statements that each had arrived at the scheduled time and place for the interview, but that Employer never showed up, labor certification properly denied. Imperial Asphalt Paving Inc. , 93-INA-119 (May 24, 1994).

Labor certification properly denied where Employer's contention that a qualified U.S. applicant was not interested in the position was directly contradicted by the applicant. The CO went beyond the requirements and issued a second NOF allowing Employer to recontact the applicant. Employer did not document any attempt to recontact, instead merely restating its original position, and certification was properly denied. David Wayne Senft , 93-INA-132 (Jun. 8, 1994).

Labor certification properly denied where responses of 3 qualified U.S. applicants contradict Employer's version as to its attempts to contact and arrange interviews for the job. Employer was unable to document its good faith efforts through certified mail receipts or other evidence. Get Set Kindergarten & Elementary School , 93-INA-284 (Jul. 8, 1994); Seealso World Tae Kwon Do University , 93-INA-308 (Jul. 26, 1994); Industrial Refrigeration Inc. , 93-INA-206 (Jul. 6, 1994) (applicant indicates not contacted, Employer failed to provide any evidence of contact); New Japan International, Inc. , 93-INA-561 (Jul. 29, 1994) (similar assertions made by four different U.S. applicants which contradict Employer's version of attempted contact and arrangement of interviews accorded more weight); Church Avenue Merchants Block Association , 93-INA-281 (Oct. 27, 1994) (Employer initially maintained two U.S. applicants never responded, admitted otherwise when contradicted by applicants); Jomar's Lighting , 94-INA-13 (Nov. 22, 1994) (Employer's statement regarding rejection of U.S. workers contradicted by five applicants who all indicated that their phone calls expressing interest in position were never responded to by Employer); Rainbow Sound , 94-INA-176 (Apr. 26, 1995) (applicants maintained not contacted, Employer asserted opposite but provided no documentation as requested by CO); Dance Trends by Blasia, Inc. , 94-INA-310 (Apr. 24, 1995).

Good faith recruitment effort not demonstrated where Employer's contention, that U.S. applicants failed to provide verification of prior employment and/or proof of legal status to work in this country, was contradicted by statements of both applicants. Moreover, Employer did not dispute that one interview was staged in a busy reception area. Aywon Wire & Metal Corporation , 93-INA-272 (Aug. 17, 1994).

Good faith recruitment effort not shown where Employer's claim that she attempted to contact U.S. applicants was contradicted by two applicants. The panel added that even assuming telephone contact was made, Employer failed to document one applicant's admission that she did not have the requisite experience requirement despite listing such experience on her resume; "an employer risks not carrying its burden of proof when it fails to document the results of a conversation in a follow-up letter to a rejected U.S. applicant." Caren Steinberg , 93-INA-316 (Oct. 28, 1994).

Labor certification denied where Employer's statement regarding attempted contact is contradicted by applicants and where evidence submitted by Employer purporting to support its contention does not in fact lend credence to its statements. In this case Employer requested that applicants contact its Santa Monica office and the applicant maintained it left several unanswered calls to that office. Employer denied any such calls could have been made but as proof offered only telephone logs from its Newbury office. Pontevecchio Restaurant , 93- INA-543 (Dec. 21 1994).

Considering that Employer's statements regarding its recruitment effort were confused and inconsistent while the U.S. applicant at issue provided a clear statement, the CO did not abuse her discretion in affording greater weight to the U.S. applicant's account. NAP Industries, Inc. , 94-INA-132 (Feb. 7, 1995). See also Shadow Auto Service , 94-INA-228 (Apr. 7, 1995) (Employer's statements regarding recruitment were inconsistent and directly contradicted by U.S. applicant).

Labor certification denied where Employer sent letters to U.S. applicants requesting that each call if interested in the position, but Employer did not dispute applicants' contention that no one was available at place of business to accept calls. Sid's Baby Furniture , 93-INA-500 (Feb. 7, 1995).

Where Employer's contention that it fully interviewed all interested applicants is contradicted by six of the applicants, each of whom indicated that they were either not interviewed or only briefly spoken to, Employer has failed to document good faith recruitment. Culver City eat Company, Inc. , 93-INA- 546 (Jan. 31, 1995).

Employer's mere assertion that U.S. applicant had stated that he was not interested in the job was insufficient to establish good faith effort to recruit where the U.S. applicant contradicted this. Haroon's Mobil, Inc. , 94-INA-180 (May 15, 1995).

To establish good faith efforts to recruit, an employer must document that it contacted U.S. workers and, if successful, it must demonstrate that the contact was timely. Employer failed to establish that it contacted U.S. workers as "the letters were sent by regular mail . . . the Employer has no documentary proof of whether or when the letters were sent or received." The panel concluded that, although the Employer's assertion that it contacted the applicants is entitled to some weight, the "independent assertions" by U.S. applicants that they were not contacted were entitled to "more weight". Pak TradingCo. , 90-INA-251 (Apr. 8, 1992). See also Jersey Welding & Fence, Co. , 93-INA-43 (Oct. 13, 1993) (citing to Robert B. Fry, Jr. , 89-INA-6 (Dec. 28, 1989) that when employer and applicant contradict each other and employer offers no evidence to support its position, the CO properly accords more weight to applicant's statements); Chung's , 93-INA-68 (Feb. 24, 1994); J. Taylor Equipment Co., Inc. , 92-INA-353 (Dec. 10, 1993); Victory Knits, Inc. , 92-INA-320 (July 20, 1993) (independent assertions of five U.S. applicants that they were not contacted entitled to more weight than Employer's assertion of contact); Strategem Security, Inc. , 92-INA-243 (Oct. 13, 1993) (in view of the similarity of five applicants' assertions to the contrary, it was not unreasonable for the CO to accord Employer's own assertions less weight).

Employer failed to establish good faith efforts to recruit where it stated that two applicants were told to call Employer for a final interview but the applicants stated that they expected Employer to call them which the panel noted was a reasonable conclusion. Indeed, the panel held that, even if the Employer's assertion was true, a requirement that U.S. workers contact it has a deterrent effect "because it is reasonable to expect that if one is considered a serious candidate for a position, Employer will initiate the contact for a final interview." Bar-Lor Cosmetics , 91-INA-242 (Oct. 31, 1992).

Labor certification was properly denied where Employer "was unable to supply dates of contact, information relating to the nature of the contact" and where two applicants asserted that Employer did not contact them. General Drapery Services , 91-INA-341 (Oct. 27, 1992).

Labor certification was properly denied where Employer gave no explanation for the clear inconsistency between his recruitment report indicating that the qualified applicant failed to show up for a rescheduled interview and the applicant's statement and Employer's own rebuttal indicating that applicant was interviewed. Meineke Discount ufflers , 92-INA-298 (Oct. 26, 1993).

Labor certification was properly denied where Employer's own statements regarding whether a U.S. applicant responded to its letter in the first place were inconsistent, and where applicant made two subsequent efforts to schedule an interview. Medical Sterilization, Inc. , 92-INA-360 (Dec. 17, 1993).

Actions by employer which indicate lack of good faith recruitment are grounds for denial. 20 CFR 656.1 and 656.2(b). Burden on employer to show that it made timely contact with potentially qualified applicants. Labor certification is properly denied where applicant's version differs from Employer's and Employer does not carry burden of rebutting those charges. Get Set Kindergarten & Elementary School , 93- INA-284 (July 8, 1994). California Quick Mart , 94-INA-430 (Jan. 17, 1996).

Where Employer's statements contradict one another, greater weight may be given to the applicant's statements that are not contradictory. Jersey Welding, 93-INA-43 (Oct. 13, 1993). Where Employer offers no proof to support his contentions, burden remains with him, and the applicant was unlawfully rejected. Don Carlos Jewelry , 94-INA-441 (Jan. 25, 1996).

Employer bears burden of proving contact with qualified applicants, especially where those applicants deny ever having heard from Employer. In addition, where telephone attempts are not successful, Employer has burden of trying, and proving alternate means of contact. Diana Mock , 88-INA-255 (Apr. 9, 1990). David Cohen , 94-INA-555 (Aug. 7, 1995).

Where two U.S. applicants refute Employer's testimony that no one was interested, CO was correct in concluding that Employer failed to perform a good faith recruitment. Letters sent to the applicants after the issuance of the NOF, that were not clear letters of employment, were not sufficient to cure the problem. See Creative Cabinet , 89-INA-187 (Jan. 24, 1990) (en banc). El Torito Restaurant , 94-INA-602 (Aug. 29, 1995).

Where Employer and US applicant have conflicting views of what transpired, the Board "generally" affords weight to the applicant. Robert B. Fry , Jr. 89-INA-6, (Dec. 28, 1989). However, CO may not rely solely on applicant's statement on questionnaire where questionnaire was sent 4 months after the recruitment process and did not identify which job the CO was inquiring about. The mere fact that she answered the questionnaire "does not indicate to us that she had such an interest in the opening at issue to give her answer more weight than Employer's documented statements." Ruberto & Remedios Agaton , 94-INA-206, (May 25, 1995).

Employer offered a salary $30,000 per year for the position of "Staff Accountant." An applicant who sought employment for that position previously earned a salary of $37,000 as an accountant at Poly Peck. Currently the applicant was consulting for an insurance products firm but was seeking a position with "stability, permanence, and growth." Employer rejected the applicant, arguing that applicant had stated that he would not accept a salary for less than $35,000. The applicant, however, stated that he never discussed salary with Employer but that he was "quite flexible" in that regard. The CO denied certification and the Board affirmed. It reasoned that the applicant's version of events was more plausible than that of Employer and applicants may only be rejected for lawful, job related reasons. First National Trading Co., 95-INA-97 (Jan. 27, 1997).

Employer sought certification for the position of "Bookkeeper I Bilingual" and required 2 years of experience for the position. 43 applicants responded to the advertisement for the position and Employer rejected 4 because they "lied." The CO denied certification and the Board affirmed. It reasoned that the CO did not err in giving more weight to the applicants' accounts of the recruitment process and Employer's statements were not entitled to more weight because each case must be decided on its own merits, because neither the Employer's account nor that of a given applicant should automatically be given more weight than the other, and because, upon review of the applicants' statements contrasted with the statements of Employer and Employer's agent (who did not have personal knowledge), "we simply" could not find the suggestion by Employer's agent that 5 applicants lied when responding to the state agency to be credible and found it more likely that Employer has misstated the facts. Compare this case with Dove Homes, Inc. , 87-INA-680 (May 25, 1988) (en banc) (declining to give determinative evidentiary weight to applicants who say that they were not contacted during recruitment), which was cited by Employer in its brief on appeal. Wah Yuan Trading Corp. , 94-INA-507 (Nov. 14, 1996).

An applicant stated that Employer interviewed him on January 7 for the position of Auto echanic. He reported that Employer told him that, although he was hired, business was slow and wished him to start at the end of January. Employer told him at the end of January that business was still slow and to call again in February or March. A second applicant stated that Employer told him that the position was filled and when he again called, was told that business was slow and to call back. Employer acknowledged that he interviewed the first applicant, but on February 7 rather than on January 7. Employer argued that the first applicant, a Bulgarian citizen, failed to produce documentation allowing him to work in the United States and that the second applicant could not provide telephone numbers of former employers to check for references. The CO denied certification and the Board affirmed. Initially, the Board questioned the lawfulness of the rejection of 3 other seemingly qualified applicants in light of the discrepancies in the rejection of the two above candidates. The Board rejected the validity of a January 27 recruitment report wherein Employer reported that none of the U.S. applicants "showed up for interview" but also stated wherein that "if any of these applicants call requesting to be interviewed...I will promptly call..." the CO. The Board noted that it was "deeply disturbed by the apparent inconsistencies between...the applicants and the Employer." See Imperial Asphalt Paving, Inc. , 93-INA-119 (May 24, 1994) (denying certification where Employer's contentions that 3 applicants failed to show up for different interviews was contradicted by the applicant's independent statements). Tilden Car Care Center , 95-INA-88 (Jan. 27, 1997).

Employer sought certification for the position of Manager of Heavy Truck Garage. The position required experience as a manager of an automobile-heavy truck station. There were 5 applicants. Two were rejected despite having extensive experience as either managers or directors of transportation. Employer stated that it rejected 1 applicant because when contacted by telephone, the applicant purportedly stated that he was already employed and was no longer interested. In response to the questionnaire, however, the applicant reported that he was told that the position was for a mechanic and that he would be repairing diesel engines. The applicant also reported that Employer told him to come in the next day for an interview and was inflexible in scheduling the interview for another day. Another applicant reported that after he requested a different interview date, Employer never called him back. The last applicant stated that he drove 65 miles for an interview with "Issac," but when he arrived, no one was available to interview him. Based on the accounts of these 5 applicants, the panel found that the CO properly denied certification based on Employer's unlawful rejection of these applicants. Employer may not discourage US applicants by rigid interview schedules, confusing interview places or times, failing to interview them and requiring additional information from them over the telephone. The Board my give more weight to the accounts of U.S. applicants when they conflict with the accounts of the Employer and when the Employer's accounts are unsupported. Orland Truck Stop , 94-INA-612 (July 23, 1996).

Employer sought labor certification for the position of live-in domestic, its duties including general "housework, laundering, cleaning, cooking and child care." The Employer required 3 months of experience for the position and 1 of 4 applicants met that job requirement. Employer argued that the 1 qualified applicant was currently operating a day care business "that she was unwilling to give up." However, the applicant denied the Employer's assertion as "an absolute lie" and instead stated that she had told the Employer that she would be willing to give up her child care business for a live-in position of $300.00 per week. The CO denied certification and the Board affirmed. It reasoned that the CO did not err in giving greater weight to the applicant's testimony than Employer's testimony because Employer's statement was "vague" and did not "actually indicate" that the applicant "was offered the position," because "each case must be decided on its own merits," because Employer's statement should not uniformly be given more weight, and because the employee's statement was more credible. See Dove Homes , 87-INA-680 (May, 25, 1988). Jane R. Fuerst , 94-INA-506 (Nov. 14, 1996).

3. Failure to produce resumes of applicants

Labor certification properly denied where the CO questioned Employer's failure to submit applicant resumes to state agency. Employer initially maintained that it never received resumes, then admitted receiving resume but responded only that U.S. applicant never showed up for scheduled interview. Because Employer never convincingly explained why resume not returned, lack of good faith recruitment found. Avila's El Ranchito Restaurant , 93-INA-162, 166 (May 24, 1994). See also Beltsville Elderly Care Home, Inc. , 94-INA-211 (May 8, 1995) (failure to submit two resumes with recruitment report as requested by CO is valid basis for denial).

Where the weight of the evidence indicated that the Employer never received the resumes of U.S. applicants from the state employment agency, denial of labor certification and cancellation of the original priority date for the alien based upon Employer's failure to return to the resumes was improper. S.A.H.A., Inc. , 91-INA-121 (May 18, 1992).

Hollywood Tropicana , 90-INA-259 (Dec. 20, 1991) is not controlling where, unlike in that case, the CO questioned Employer's contention that it did not receive the resumes and whether Employer conducted a good faith recruitment. Houston's Restaurant , 94-INA-487 (Feb. 13, 1996).

4. Proof of service

no new cases

V. Interview requirement and travel expenses

no new cases

VI. Later attempts to contact applicants

A. Current unavailability of applicant

Labor certification properly denied where Employer was directed to document good faith recruitment but instead attempted to recontact the applicants. The fact that the applicants were shown to be subsequently unavailable did not cure the initial violation. Flushing Auto Service Corp. , 93-INA-204 (Jun. 5, 1994). See also Connecting Point, Inc. , 93-INA-318 (Dec. 2, 1994) (Employer's later attempt to contact U.S. applicant not even considered since Employer added previously unstated requirement); Carlo's Cleaning Service , 94-INA-112 (Feb. 13, 1995) (Employer's contact of U.S. applicants seven months after issuance of the NOF does not cure initial violation); Walt Whitman Software, Inc. , 93- INA-549 (Mar. 8, 1995) (applicant's failure to respond to belatedly send contact letter does not cure Employer's initial failure to contact applicant during recruitment period); Hagopian & Sons, Inc. , 94-INA-178 (May 4, 1995).

Good faith recruitment is not established where Employer attempts to recontact a U.S. worker after initially rejecting him or her to find that the applicant is no longer available. Roman Catholic Diocese of Brooklyn , 90-INA-453 (Apr. 13, 1992). See also Bobby McGee's , 91-INA-39 (Apr. 15, 1992).

An applicant's unavailability at the time of Employer's belated contact of him or her "does not cure defective recruitment." Hawtal Whiting, Inc. , 92-INA-86 (Feb. 23, 1993). See also Stan Shaw Corp. , 92-INA-76 (Mar. 31, 1993).

An attempt to contact unlawfully rejected applicants one year later properly resulted in the denial of labor certification. China Town Planning Council, Inc. , 92-INA-247 (Apr. 28, 1993). See also Jacob Camrad , 92-INA-379 (July 28, 1993); Adelphi Academy , 92-INA-254 (Sept. 30, 1993).

Where two U.S. applicants refute Employer's testimony that no one was interested, CO was correct in concluding that Employer failed to perform a good faith recruitment. Letters sent to the applicants after the issuance of the NOF, that were not clear letters of employment, were not sufficient to cure the problem. See Creative Cabinet & Store Fixture , 89-INA-187 (Jan. 24, 1990) (en banc). El Torito Restaurant , 94-INA-602 (Aug. 29, 1995).

Employer has duty to investigate facially qualified U.S. applicants Gorchev & Gorchev Graphics Design , 89-INA- 118 (Nov. 29, 1990). Good faith recruitment is not established where Employer attempts to re-contact applicant after initially rejecting him only to find that applicant is no longer available. Roman Catholic Dioceses of Brooklyn , 90-INA-453 (April 13, 1992). U.S. West, Inc ., 94-INA-28 (Oct. 4, 1995).

Where U.S. applicant qualified for job, Employer has duty to investigate their credentials further. Fact that applicant failed to appear for interview 7 months after the initial recruitment is not lawful reason for rejection where Employer failed to contact that applicant at all during the initial recruitment period. See Gorchev & Gorchev Graphic Design , 89-INA-118 (Nov. 29, 1990). (en banc). Inwood Imports , 94-INA-605 (Aug. 31, 1995).

Where Employer rejected 10 applicants and the NOF states that the rejection was unlawful, later unsuccessful attempt to contact the applicants cannot assist Employer. The failure of the applicants to respond does not help Employer meet his burden of proving that the applicants were rejected for lawful, job-related reasons. Label Industries, Inc. , 95-INA-006 (Nov. 26, 1996).

See also Roy Lipman Org., Inc. , 95-INA-71 (July 26, 1996); Lobel Industries, Inc. , 95-INA-6 (Nov. 26, 1996); Ruth Wolfe , 94-INA-406 (Jan. 29, 1996) (denying certification because the fact that applicants did not respond to certified letters sent after the NOF does not cure Employer's original defect in the application process and because the critical inquiry is whether they were unavailable during the recruitment period).

Employer applied for certification for the position of Middle Eastern Specialty Cook. Employer noted the rejection of 1 applicant who had worked at 2 different Middle Eastern Restaurants for 1 years and attended cooking school for 11 months. He was rejected because he was "unable to prepare, season, and cook certain dishes such as spinach, meat and chicken pies, and desserts..." In rebuttal, Employer stated that it had offered the applicant the position. The CO denied certification and the Board affirmed. Citing Roman Catholic Diocese of Brooklyn , 90-INA-453 (Apr. 13, 1992), the Board noted that an Employer fails to establish good faith recruitment where it attempts to re-contact a U.S. worker after initially rejecting him or her to find that the applicant is no longer available. In the instant case, the Board reasoned that Employer could not cure an initial violation of the regulations by offering the position to the applicant after the CO issued the NOF. Kamal's Middle Eastern Specialties , 95-INA-167 (Dec. 19, 1996).

Employer applied for certification for the position of Middle Eastern Specialty Cook. Employer noted the rejection of 1 applicant who had worked at 2 different Middle Eastern Restaurants for 1 1/2 years and attended cooking school for 11 months on the basis that he was "unable to prepare, season, and cook certain dishes such as spinach, meat and chicken pies, and desserts..." In rebuttal the CO's NOF, Employer stated that it had offered the applicant the position. The CO denied certification and the Board affirmed. Citing Bruce A. Fjeld , 88-INA-333 (May 26, 1989) (en banc) and Suniland usic Shoppes , 88-INA-93 (Mar. 13, 1989) (en banc), among other cases, the Board reasoned that "if an employer attempts to contact an applicant after the CO alleges that the applicant was not contacted or interviewed, or was rejected, the fact that the employer shows that the applicant is now unavailable does not cure the initial violation." Here, the Board noted that Employer had offered the applicant the position 9 months after the initial rejection. Kamal's Middle Eastern Specialties , 95-INA-167 (Dec. 19, 1996).

B. Lack of availability or qualification at the time of initial recruitment

no new cases

C. Delay unrelated to lawful rejection

no new cases

D. CO's request to contact U.S. applicants

1. Authority of CO to require contact or recontact

no new cases

2. NOF whose scope permits rejection based on information derived from later contact

no new cases

3. Requirement that employer be provided adequate time to document recontact

no new cases

4. Instruction not to contact

no new cases

E. Applicant not qualified; "fortuitous cure" [NEW] 1.

Where the applicant's resume indicated a broad range of experience such that Employer should have timely pursued the application, and Employer's initial basis for not pursuing the application was the applicant's lack of experience in an unstated job requirement, Employer's failure to timely contact the applicant is not cured by belatedly interviewing the applicant four months after issuance of the Notice of Findings. Notably, Employer maintained that upon interviewing the applicant it was evident that he was not able to perform certain functions of the job. The panel, however, did not accept this as a cure; "The [e]mployer cannot purge itself of this lack of good faith during the pertinent recruitment period by waiting over four months and then belatedly interviewing the U.S. applicant after the NOF." The Weck Corporation d/b/a Gracious Home , 93-INA-35 (Mar. 8, 1995).

VII. Alien involvement in interview

Labor certification properly denied where the alien was present during the interview, and participated in the questioning of, a U.S. applicant. Homestead Group Associates , 93-INA-502 (Oct. 13, 1994).