Judges' Benchbook: Alien Labor Certification
Office of Administrative Law Judges
Second Edition - May 1992
United States Department of Labor
CHAPTER 15 -- SUPPLEMENTSupplement current through January 1997
LOCAL EMPLOYMENT SERVICE
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TABLE OF CONTENTS
Discretion of CO to take into
consideration local employment service's bad advice
Requirement that CO consider rebuttal
argument that employer was mislead by local employment
Where the CO in effect notified the state employment office to direct Employer to undertake a new recruitment, and Employer does this as directed but no U.S. applicants apply, the CO cannot at that point "change his mind after Employer is induced to abandon its disagreement with the CO in order to attempt to promptly obtain certification by engaging in a new recruitment effort." Here the CO maintained that the new recruitment advised by the state agency had no binding effect on its own determination. Prima Royale Enterprises, Ltd. , 92-INA-262 (Sept. 20, 1993).
Whether the state agency should have allowed Employer to advertise at the lower wage where the CO ultimately determined that rate below the prevailing rate is not determinative since even if the local job service authorized Employer's advertisement and accepted its wage offer, such a determination is not binding on the CO. Ann Richman , 93-INA-13 (Mar. 21, 1994).
At the time Employer advertised for the position of Systems Analyst, the New Jersey Department of Labor (N.J.D.O.L.) requested an explanation as to why it was necessary for the employee to know IBM Systems 36, RPG II/III, SDA, DFU, WSU, C, and DOS. After receiving a multi-page response noting, in part, that the Alien had taken an advanced course in IBM S/36 at Baruch College at an unspecified date, the N.J.D.O.L. suggested to Employer that it list as a requirement "course work" in the specific computer programs rather than "knowledge of" the same. Employer rejected the suggestion and advertised the position without the recommended changes. The CO denied labor certification and the Board affirmed. The Board reasoned that, although Employer argued both that the N.J.D.O.L. never challenged the requirement as restrictive and that it "advertised and recruited based on the application as approved by the N.J.D.O.L.," nonetheless the record shows that wording of the Employer's advertisement was against the N.J.D.O.L.'s advice and, moreover, "it is well settled that the CO is not bound by the actions of the local employment service." See Peking Gourmet , 88-INA-323 (May 11, 1989). Wings anufacturing Corp., 95-INA-98 (Jan. 27, 1997).