BALCA Benchbook - Chapter 22 Supplement (January 1997) | U.S. Department of Labor

Judges' Benchbook: Alien Labor Certification

Office of Administrative Law Judges
United States Department of Labor

Second Edition - May 1992

CHAPTER 22 - SUPPLEMENT

Supplement current through January 1997

RECRUITMENT EFFORTS

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TABLE OF CONTENTS

II. Pre-filing recruitment

A. Report of pre-filing recruitment
B. Request for reduction of post-filing recruitment requirements based on pre-filing recruitment efforts

III. Post-filing recruitment

A. Regulatory requirements for post-filing recruitment
B. Report of post-filing recruitment
C. Advertisement of petitioned position
D. Publication of advertisement
E. Posting notice of job offer
F. Additional recruitment efforts
G. Deficiencies in recruitment

IV. Readvertisement and re-recruitment

A. Cure of error by readvertisement
B. Conforming to CO's readvertisement instructions
C. NOF must state clear directions
D. Employer not bound by suggested publication
E. Re-recruitment under more restrictive requirements
F. Readvertisement must be documented
G. Harmless error in re-recruitment
- 1. Error in Form ETA 750
- 2. Error in readvertisement
H. Timeliness of rebuttal; ongoing recruitment efforts
I. Re-recruitment under less restrictive requirements

NOTE: For labor certification applications filed on or after November 22, 1991, the effective date of the 1990 amendments to the Act, the regulations regarding union recruitment have been recodified from 20 C.F.R. § 656.21(b)(5) to § 656.21(b)(4).

II. Pre-filing recruitment

A. Report of pre-filing recruitment

1. Regulatory requirements for pre-filing recruitment report

Panel concluded that certification is properly denied where employer improperly rejects U.S. applicants to a pre-application recruitment, at least where pre-application rejection of U.S. workers was within 6 months of the date the application for labor certification was filed. Prima Royale Enter., Ltd. , 92-INA-262 (Sept. 20, 1993).

2. Employer bears burden of documenting pre-filing recruitment efforts

Labor certification was properly denied where Employer was required to provide a recruitment report, 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 the Employer's responsibility to verify the employment status of each applicant, but where, not withstanding these instructions, Employer only supplied the applicants' resumes containing unsigned reasons for rejection. Mere assertions of recruitment activity are insufficient without supporting documentation. See Paterson Bd. of Educ. , 88-INA-88 (Apr. 21, 1988). Metlife , 95-INA-327 (Feb. 11, 1997)

3. Inapplicability of pre-filing regulations to post-filing recruitment efforts

4. Good faith requirement

Pursuant to sections 656.21(b) & (b)(1), an employer is required to document its prior recruitment efforts. Therefore, the CO's inquiry into employer's pre-filing recruitment was relevant and Employer's failure to answer the CO's inquiries justified denial of certification. oreover, because the CO has the authority to direct additional recruitment, the CO has implicit authority to inquire into Employer's subsequent recruitment efforts when directly relevant to the adequacy of Employer's pre-recruitment. In a concurring opinion, Chief Judge Litt stressed that information regarding either the pre-filing or subsequent recruitment effort is relevant only for purposes pointing out deficiencies in the recruitment performed for certification, e.g. , whether employer followed its own usual recruitment efforts. County of San Bernardino Land Management Dep't , 91-INA-155 (Feb. 7, 1995). See also Computech Int'l , 94-INA-43 (Feb. 26, 1996); Calterm, Inc ., 94-INA-35 (July 1995) (holding that neithr 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).

B. Request for reduction of post-filing recruitment requirements based on pre-filing recruitment efforts

The case was remanded where the CO failed to rule on a request for reduction in recruitment. State of South Dakota , 91-INA-190 (July 9, 1992).

III. Post-filing recruitment

A. Regulatory requirements for post-filing recruitment

1. Recruitment efforts must be documented

2. Additional recruitment may be required

Employer advertised 4 job openings in the newspaper and in a posting. There were no applicants and no applicants were referred by the local employment agency during the 30 day recruitment period. The local employment office closed the file and forwarded it to the CO. Almost 3 months later, the local Dislocated Worker Unit called Employer to arrange an interview for a dislocated worker. The Employer apparently agreed to the interview but when the applicant appeared, Employer turned the applicant away, purportedly because the applicant was too old and too dark. The CO acknowledged Employer's right to refuse applicants after the closing of the job order, but found that the Employer's agreement to interview the applicant constituted an implied re-opening of the recruitment period, and that rejection on the basis of race, creed, color, national origin, age, sex, religion, handicap or citizenship was unlawful and demonstrated the Employer's lack of good faith recruitment. The panel reversed, finding that since Employer had 4 job openings and only 2 applications for labor certification, it was reasonable for Employer to interview applicants for the additional 2 job openings (non labor cert. job openings), regardless of the referral source and to make hiring decisions unaffected by the labor certification proceedings because the recruitment period had ended 3 months prior, and the Employer's agreement to interview the applicant did not constitute an implied reopening of the recruitment period. Kelgold, Inc. t/a Watergate Valet , 94-INA-609, 610 (Sept. 12, 1995)

3. Role of local employment service

4. Recruitment through unions

A panel determined that Employer followed the CO's directions regarding contacting local union for additional recruitment of U.S. workers and provided a reasonably specific response why no U.S. applicants could be recruited through the union. Accordingly, this was not a legitimate ground for denial of certification. Saturn Plumbing , 92-INA-194 (Feb. 3, 1994).

By incorrectly stating the minimum job requirements in its letter to the unions requesting referral of applicants, employer violated section 656.21(b)(5).

5. Positive recruitment at colleges and universities

B. Report of post-filing recruitment

1. Regulatory requirements

Employer failed to submit a recruitment report which complied with the requirements set forth at 20 C.F.R. § 656.21(j)(1) where it was merely asserted that, for the three applicants referred from the local job service, "I filled out the form they brought with them stating their name, date and reason for not being hired, and sent it back to Job Service Unemployment. . .." Moreover, a bare assertion, after issuance of the FD, that no recruitment report was submitted due to a change in management does not excuse non-compliance with 20 C.F.R. § 656.21(j). The Screen Place , 90-INA-431 (Mar. 11, 1992).

An employer's failure to submit a recruitment report supports a denial of labor certification. Moreover, citing Modular Container Sys., Inc. , 89-INA-228 (July 16, 1991) (en banc), the panel held that, absent extraordinary circumstances, employer's counsel cannot act as a fact witness to document the recruitment efforts of his or her client. Hi Lume Corp. , 90-INA-444 (Mar. 4, 1992).

Employer applied for certification for the position of Italian Specialty Cook. The CO issued a NOF, noting that 1 applicant informed the CO that, had she been contacted in a timely manner, she may have been interested in the position. In addition she stated that Employer had told her that she was overqualified for the position. In rebuttal, Employer informed the CO that, although he had started trying to contact the applicant on February 16, the applicant had been unavailable until February 23. However, these efforts to contact the applicant was never mentioned in the recruitment report, which indicated the 1st contact to be on February 23. The CO Denied certification and the Board affirmed. Citing Yaron Dev. Corp ., 89-INA-17 (Apr. 19, 1991) (en banc), the Board reasoned that recruitment reports must indicate what attempts the employer made to contact applicants and include such details as when or how many times it attempted to contact applicants. In the instant case, the Board held that the Employer's 3 week delay in contacting the 2 applicants was untimely. Pizzeria and Restaurant Randazzo , 95-INA-152 n.2 (Dec. 27, 1996).

Post-application recruitment results written by Employer's attorney does not constitute evidence. See Hi Lume Corp. , 90-INA-444 (Mar. 4, 1992). The Board distinguished this case on the basis that the recruitment report was signed by the employer and thereby adopted by Employer as its own version of dealings with the U.S. applicants. Bimbo Bakery , 94-INA-436 & 437 (July 14, 1995).

2. Employer bears burden of documenting recruitment efforts

A general recruitment report provides an insufficient basis upon which to conclude that the employer engaged in good faith recruitment. Nitto Denko Am., Inc. , 91-INA-93 (Apr. 1, 1992). See also TPK Constr. Corp ., 91-INA-223 (June 30, 1992).

A recruitment report, consisting only of the employer's assertions that it made numerous attempts to contact U.S. Applicants by telephone, is insufficient to establish a reasonable effort to recruit the applicants. This is particularly true where no dates or times of attempted contacts were provided. Gandhi Eng'g, P.C. , 90-INA-355 (Mar. 11, 1992).

Labor certification was properly denied where Employer failed to provide the CO with names, addresses, and resumes of workers interviewed as well as specify lawful, job related reasons for rejection at required by 20 C.F.R. § 656.21(j)(1)(iii) and (iv). County of San Diego, Dept. of General Serv. , 92-INA-19 (Jan. 26, 1993). See also S & F Touring Group , 91-INA-365 (June 30, 1993) (applicable to cases under the special handling provisions).

Employer must document why each individual applicant was rejected. Where Employer lumps all applicants into groups as large as 47 and does not specifically state why each is unqualified, Employer has rejected U.S. applicants for other than job related reasons. California Lutheran Univ. , 94-INA-381 (July 28, 1995).

Employer applied for certification for several positions of "Fast Food Worker." In its application for certification Employer provided 3 flyers to the CO to document its recruitment efforts but failed to provide any evidence of when and where they had been posted. The CO issued a NOF proposing to deny certification on the basis that the Employer failed to document its recruitment efforts and failed to indicate that it was willing to continue recruitment efforts. In rebuttal Employer denied the inadequacy of its recruitment efforts but failed to indicate willingness to continue recruiting. The Employer argued that, due to its large size, it was unable to provide its advertisements because it contained no copies of them. However, Employer did provide billing records that Employer claimed were from advertising. The CO denied certification and the Board affirmed. Citing Paterson Bd. of Educ. , 88-INA-88 (Apr. 21, 1988), the Board noted that "mere assertions of recruitment activity are insufficient without supporting documentation." The Board reasoned that it could not make "special allowances for large employers contending that such documentation is too burdensome for its [sic] sizable enterprise." Hardee's Food Sys., Inc. , 95-INA-211 to -216 (Jan. 27, 1997).

3. Employer must produce reasonably requested documentation

Employer applied for certification for several positions of "Fast Food Worker." In its application for certification Employer provided 3 flyers to the CO to document its recruitment efforts but failed to provide any evidence of when and where they had been posted. The CO issued a NOF proposing to deny certification on the basis that the Employer failed to document its recruitment effort. The CO requested multiple types of information from Employer about recruiting. In rebuttal Employer denied the inadequacy of its recruitment efforts but failed to indicate willingness to continue recruiting. The Employer argued that, due to its large size, it was unable to provide its advertisements because it contained no copies of them. The Employer provided billing records that Employer claimed were from advertising. The CO denied certification and the Board affirmed. Citing Oconee Ctr., Mental Retardation Serv. , 88-INA-40 (July 5, 1988), the Board noted that Employer must provide documentation concerning recruitment activity that is relevant and reasonably obtainable. The Board found that the information requested in the NOF was reasonable. It noted that it could not make "special allowances for large employers contending that such documentation is too burdensome for its [sic] sizable enterprise." Hardee's Food Sys., Inc. , 95-INA-211 to -216 (Jan. 27, 1997).

C. Advertisement of petitioned position

1. Regulatory requirements

2. CO may specify advertisement requirements

3. Assistance of local job office in drafting advertisement

4. Implied good faith requirement

5. Advertisement offering less favorable terms and conditions

The panel held, contrary to the CO's assertions, that Employer's advertisement adequately alerted potential applicants to the required five to ten hours of overtime and, therefore, did not violate 20 C.F.R. § 656.21(g)(8) as offering "less favorable wages, terms and conditions . . .." Eduardo's Cleaning Serv. , 91-INA-45 (Apr. 15, 1992).

Labor certification was properly denied where Employer agreed to amend its minimum experience requirement from one year to three months, but advertisements for the job included both requirements. The panel concluded that the job market was not adequately tested as "[a] qualified U.S. applicant with only three month's experience may have been dissuaded from applying . . .." Moreover, Employer failed to include the location of the employment such that potential applicants may have believed that the job was in Sacramento where they sent their resumes as opposed to Los Angeles where the job was located. Lori Gumser , 91-INA-168 (Mar. 17, 1993).

Labor certification properly denied where the advertisement for the position does not specify that free room and board are provided although on the ETA 750 this was listed as a term of employment. Dr. Alma Sue Richmond and Mr. Samuel Smith , 92-INA-282 (Nov. 15, 1993).

6. Ambiguous statement of experience requirement

7. Erroneous statement of job requirements; harmless error where advertisement did not decrease pool of applicants

Labor certification properly denied where advertisement failed to accurately state the requirements for the position. For example, the ad specified that an L.A. County emergency medical technician (E.M.T.) certificate was required while any California E.M.T. was acceptable. Accordingly, the advertisement restricted the pool of potential applicants. Goodhew Ambulance Serv., Inc. , 93-INA-287 (Aug. 16, 1994). See also Bio-Medic Health Serv., Inc. , 94-INA-42 (Nov. 17, 1994)(employer failed to include a requirement in advertisement; in response to a request for en banc review, the panel issued a Decision and Order on Reconsideration denying the request for en banc review and affirming the denial of certification); Village of Great Neck Estates , 94-INA-126 (April 14, 1995) (Employer failed to include educational and experience requirements as well as the salary offer in the advertisement).

Failure to include a one-year experience requirement in a second advertisement was harmless error as it did not discourage U.S. workers from applying and the requirement was stated on the ETA-750 and in the third advertisement for the job. The panel held that the employer properly rejected a U.S. worker who did not have the one year of required experience as the record demonstrated that Employer "did not spuriously increase its requirements after a qualified U.S. applied." The panel noted that the employer's third advertisement contained all of the correct requirements but resulted in no applicants and, although it was not placed through the job service, and "did not technically comply with the regulations" and the CO did not raise this issue. Systems Int'l, Inc. , 92-INA-214 (May 26, 1993).

Labor certification denied due to employer's failure to specify in advertisement that maintenance mechanic position was in sewing factory. The panel held that such a failure was not harmless error because, contrary to employer's contention, this may discourage applicants; "put simply, a maintenance mechanic with experience maintaining and repairing machines used in a sewing factory would be more inclined to apply for a job that identified the employer as such, . ."). Joon Fashion, Inc. , 92-INA-378 (Feb. 7, 1994).

8. Failure to refer applicants to local employment service

D. Publication of advertisement

1. Regulatory requirements

20 CFR § 656.21(g)(1) states that the advertisement shall list the rate of pay. Where employer fails to do this, then on appeal relies on an 8 month old add, certification was properly denied. Jolin Realty , 94-INA-294 (June 27, 1995).

2. Timing of publication

3. Location of advertisement in publication

Labor certification properly denied where advertisement for "Luncheon Truck Cook" placed under incorrect section of classifieds. Position should have been advertised under section headed "Restaurants" as, according to the CO, "virtually all restaurant jobs are advertised under the title Restaurants in the Los Angeles Times." Karen's Catering , 93-INA-73 (Jun. 27, 1994).

Labor certification was denied where a panel concluded that the job offered was incorrectly advertised under the heading "'Secondary Teacher'" and no other job appeared under that heading "whereas five teaching positions were offered under the heading of 'Teacher(s)'". The panel noted that "the word 'Secondary' (was) boldfaced, and the word 'Teacher' (was) in the same typeface as the job description" which would not be "'most likely to bring responses from able, willing, qualified, and available U.S. workers'" in violation of 20 C.F.R. § 656.21(g). Los Angeles Unified Sch. Dist. , 92-INA-21 (Feb. 18, 1993).

Labor certification was properly denied where the employer advertised its job for a restaurant busboy in the "Jobs Offered" section of the Los Angeles Times under the caption "Service Attendant" rather than under the more appropriate section headed "Restaurants" and caption of "Dining Room Attendant." The panel noted that, according to the CO, "'virtually all restaurant jobs are advertised under the title 'Restaurants'" in the Los Angeles Times. The Place Across The Street , 92-INA-376 (July 28, 1993). See also Basam & Fadia Waw , 94-INA-378 (June 22, 1995) (denying certification where Employer failed to utilize the section of the want adds which targets job seekers with the kind of background Employer said it sought despite specific instructions to do so).

4. Burden of proof

a. Employer bears burden of proving that publication is appropriate

Labor certification properly denied where CO challenged appropriateness of advertisement in Brooklyn edition of the NY Daily News while employer was based in Queens. Employer failed to rebut the CO's finding that advertisement in a city wide edition would edition would attract more applicants for the position. J.F. Fashions Factory , 93-INA-148 (Jun. 28, 1994). See also Quality Rebuilders Corp. , 93-INA-141, 144, 145 (Jun. 28, 1994)(ad improperly placed in classifieds under "general help" where position more accurately described under "electrician helper, automotive").

Failure to place the recruitment advertisement in the paper and location most likely to draw qualified U.S. applicants is also ground for denial. Amikam , 94-INA-474 (Aug. 17, 1995). See also Computech Int'l , 94-INA-43 (Feb. 26, 1996).

b. CO bears burden of proving that another publication would be more appropriate

Labor certification was granted where Employer was directed by the CO to readvertise the position in a newspaper "like the Times". The employer made a prima facie showing that readvertisement in the NY Daily News constituted appropriate publication by stating that jewelry industry positions are regularly advertised in the Daily News, and by submitting eleven ads for jewelry industry jobs from the Daily News. The CO failed to meet its resulting burden of showing that publication in another newspaper was more appropriate merely by speculating that a publication like the Times reaches a wider and more representative labor pool and by criticizing certain of the eleven ads submitted as evidence by Employer. Intercolor , 93-INA-135 (May 4, 1994).

Where Employer adequately explained its mode of advertisement for the job offered and asserted that it was appropriate as compared to the CO's mode, the burden shifted to the CO to explain why another publication would have been more appropriate and more likely to attract qualified candidates. This is a particularly true where the CO was inconsistent and permitted Employer's mode of advertisements in three recent cases with similar fact patterns. Hillel Hebrew Academy , 90-INA-572 (Mar. 4, 1992). See also The Cherokee Group , 91-INA-280 (Nov. 4, 1992) (the CO failed to meet his burden through a mere assertion that the publication chosen contained only one other position which was similar to that offered as accountant).

The CO's denial of certification was vacated and certification was granted where the employer initially met its burden of establishing that advertisement for a position of mid-advanced engineer in a nationally circulated technical magazine for engineers was appropriate and the CO did not in turn explain why advertisement in the LA Times would have been more appropriate. Schaeffer Magnetics , 93-INA-24 (Dec. 21, 1993).

Labor certification was properly denied where the CO established that Employer's choice of medium in "Investor's Daily was the paper of limited circulation intended primarily for entrepreneurs and investors, not job seekers . . .." The panel agreed with the CO that the job of International Tax Consultant should have been advertised in the Los Angeles Times "which carries as much as 50 to 100 times as many employment ads for accountants and related occupations." Computer Accounting & Tax Serv. , 91-INA-385 (Jan. 6, 1993); see also Electro-Star , 92-INA-402 (Sept. 30, 1993) (citing to Computer Accounting & Tax Serv. ).

Labor certification was properly denied where the employer advertised the job of Transducer Technician in the Outlook Newspaper, which Employer asserted was in order to limit the geographical area of applicants as "workers recruited through the Los Angeles Times have had to travel greater distances to work and tended not to stay with the Company as long...." The panel, however, found this unpersuasive and agreed with the CO that the employer should have advertised in the Los Angeles Times which had "more than twice the circulation of the Outlook Newspaper." West Coast Research Corp. , 92-INA-208 (July 2, 1993). See also Computech Int'l , 94-INA-43 (Feb. 26, 1996).

5. CO not bound by employment service's designation of publication

See Cesar Diosa , 95-INA-25 (July 24, 1996).

6. Overlapping newspaper distribution; circulation not determinative

Where two newspapers overlap, CO may not use circulation size as sole factor in determining which paper is more likely to bring responses. Montclair Auto Body Shop , 88-INA-224. Burton Way Motors , 94-INA-478 (July 20, 1995). See also 22 3 Computech Int'l , 94-INA-43 (Feb. 26, 1996).

7. Local newspaper in small community

A panel held that an employer failed to properly advertise the job offered where the advertisements appeared in the "Denver Post" but the job offered was in Trinidad which, through taking official notice pursuant to 20 C.F.R. § 18.201(b)(2), the panel found was 200 miles from Denver. The panel concluded that "[d]ue to the distance between the two areas, and the type of job involved (as cook), it is unlikely that Employer would get a large response form workers located in Trinidad . . .." Trinidad Motor Inn , 91-INA-311 (Nov. 4, 1992).

8. Local newspaper in large community

Employer did not adequately test the labor market where it advertised job of Electronics Technician-Musical in the Daily Breeze, a local town paper, rather than the Los Angeles Times. As noted by the CO, the local town paper used does not reach such concentrated entertainment areas within the Los Angeles Metropolitan area as Burbank, Hollywood, Studio City. Therefore, the CO correctly concluded that the Los Angeles Times was more likely to attract qualified U.S. workers. Amendola Music , 93-INA-310 (Jul. 26, 1994).

9. Technical position

10. Publication in national professional journal under § 656.21a

11. Publication in ethnic publication

E. Posting notice of job offer

Labor certification denied where employer posted the application for labor certification rather than a notice of job offer. Wellesley College Dept. of Italian , 93-INA-473 (Oct. 5, 1994).

Employer's failure to correct deficiency in posting notice supported denial of certification. Sarah Lynn Sportswear , 94-INA-46 through 94-INA-48 (Apr. 6, 1995) But see Data Decisions, Inc. , 94-INA-24 (Apr. 25, 1995)(employer's posting notice did not technically comply with requirements, and while the panel indicated that it would have been preferable for Employer to comply with the NOF instructions to repost, its failure in this factual situation was harmless error because the purposes of the posting regulations were served by the technically deficient posting).

1. Regulatory requirements

Section 656.20(g) requires that a job posting notice go up in a conspicuous, open place where U.S. workers can readily see the notice. Employer has burden of showing that such notice was posted, if employer fails that burden, certification is properly denied. Sandras Beauty Salon , 94-INA-433 (Jan 23, 1996)

a. Posting requirement cannot be avoided based on company policy

An employer cannot avoid posting the rate of pay for the job offered based upon company policy that requires "a grade which refers to a salary range for the position". Thus, labor certification was properly denied. Burlington Air Express , 90-INA-464 (May 18, 1992).

b. Posting requirement cannot be avoided based on use of a wider means of publication

2. Statement of wage offered

3. Prevailing wage

4. Timing and location of posting

5. Documentation of posting

Employer bears the burden of documenting that it posted the job notice in compliance with the regulations. Where, in the NOF, the CO requests a copy of the postings, but employer only stated when it posted a copy of the job offer, certification properly denied. West Virginia Inst. of Technology , 94-INA-146 (Dec. 21, 1994); Sandberg and Sikorski Diamond Corp. , 94-INA-104 (Mar. 31, 1995) (Employer did not respond to CO's request to repost an accurate job notice and did not provide documentation of a reposting); Wilton Stationers, Inc. , 94-INA-232 (Apr. 20, 1995)(Employer failed to provide copy of reposted job notice in rebuttal).

1. Regulatory requirements

2. CO's authority to direct further recruitment efforts

Where there is no indication that recruitment through the union is customary in the non-union employer's area or industry, the employer is not initially required to inquire through the union for referrals pursuant to 20 C.F.R. § 656.21(b)(5). However, the CO may nevertheless require that the employer attempt to recruit through the union, where the union has indicated a willingness to refer its workers to non-union jobs, pursuant to 20 C.F.R. § 656.24(B)(2)(i) which provides that the CO "shall look at the documented results of the Employer's . . . recruitment efforts, and shall determine if there are other appropriate sources of U.S. workers." David Howard of California , 90-INA-241 (May 12, 1992)(en banc). See also Computech Int'l , 94-INA-43 (Feb. 26, 1996).

Employer applied for certification for the position of Manager, Grocery. The Employer required 3 years of experience in the job offered or, alternatively, three years experience as an assistant manager. The advertising for the position was listed under "Liquor Store anager" 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. The Employer rebutted, arguing that the CO provided no reasoned explanation for the proposed advertisement. The CO denied certification and the Board affirmed. Citing Intel Corp ., 87-INA-570 (Dec. 11, 1987) and Peking Gourmet , 88-INA-323 (May 11, 1989), the Board reasoned that a CO is authorized to require further recruitment if he or she finds that further recruitment could provide additional qualified job applicants and where the CO provides a reasonable explanation for this finding. The Board found here that the CO provided a reasonable explanation. First, the Board found that the CO clearly explained that re-advertisement under the new heading, "manager" was necessary since advertisement under the original heading failed to target the largest number of potential applicants. Second, the Board found that applicants searching for the position of Manager, Grocery Store, would be more likely to search under "manager" rather "liquor." Further, the Board found that this last point was "an especially valid observation given the Employer's willingness to accept Assistant Manager, Grocery Store experience in lieu of experience in the job." Family Liquors & Grocery , 95-INA-125 (Dec. 23, 1996).

3. CO must explain why additional recruitment is necessary

G. Deficiencies in recruitment

1. Existence of applicant responses does not cure deficiencies

2. Employer's refusal to recruit as required

3. Failure to follow normal recruitment procedures

Employer's counsel was improperly involved in the interviewing of U.S. workers for the job offered as the attorney did not customarily interview applicants for the job. Mrs. Lesley Zwick , 93-INA-188 (Dec. 2 1994)( citing Sharon Lim Lau , 90-INA-103 (Oct. 27, 1993).

Labor certification properly denied where employers turned recruitment effort over to their attorney without demonstrating that this was a usual business practice or that they were unable to recruit workers themselves. The CO correctly concluded that a recruitment letter from the attorney, bearing the attorney's letterhead, may have had a chilling effect on responses from applicants. Hugh Browne and Edythe Heus Browne , 93-INA-350 (Jan. 20, 1995.

Rejecting the "pro forma attorney for alien" exception of Marcelino Rojas , 87-INA-685 (Mar. 11, 1988), a panel held that the employer's counsel was improperly involved in the interviewing of U.S. workers for the job offered as the attorney did not customarily interview applicants for the job. Sharon Lim Lau , 90-INA-103 (Oct. 27, 1992). However, labor certification was improperly denied where the attorney, who represented both Employer and Alien, offered a qualified U.S. worker the job which was rejected on an undocumented assertion by the applicant that Employer had "'a very heavy language barrier'" and he would "'trust no one'". Le Petit Prince, Inc. , 91-INA-354 (Feb. 22, 1993).

Labor certification was properly denied where "letters contacting the prospective U.S. workers were sent by the Employer's attorney, on 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 employing approximately 50 individuals. K & S Sportswear , 91-INA-52 (Dec. 9, 1992).

Labor certification was properly denied where the "Alien apparently does have some hiring authority" as vice president of Employer's United States office. The employer does not speak English and there was no evidence to establish that he "personally reviewed translated resumes or designated others to review the resumes." Hedrich USA, Inc. , 91-INA-397 (Feb. 1, 1993).

Labor certification was properly denied where the employer's attorney acted as the "contact person" and his "purpose in contacting the applicants was to expedite matters." The panel concluded that "the interposing contact by the employer's attorney, on law firm letterhead, with the only follow-up employment contact offered being the attorney himself, was inappropriate and especially incompatible with the job opportunity of Sample Stitcher . . .." Techknits, Inc. , 92-INA-1 (May 12, 1993); See also Murray Goff Nursery , 93-INA- 84 (Jan. 4, 1994)(employer failed to establish that counsel normally interviews prospective applicants).

IV. Readvertisement and re-recruitment

A. Cure of error by readvertisement

Labor certification denied where employer was notified by the State employment agency that there were available U.S. workers for the position and that it needed to re-advertise through the State agency. Employer did not agree to readvertise until after Final Determination. Sam's Auto Repairs , 92-INA-409 (Mar. 18, 1994).

Employer in amending the job title and description of the advertised position, failed to respectively rebut the NOF. Employer's changes constituted a new job offer for which an application must be filed. Nuway Technical Serv. , 94-INA-289 (June 5, 1995).

CO properly found that Employer had not rebutted a second NOF where the Employer's posting notice did not reflect the revised requirements of Employer after the application had been amended. Anjunman Arts Academy , 94-INA-303 (May 30, 1995).

Where employer initially placed an ad in the wrong paper and then resubmitted it in the new, correct paper with an additional requirement that may have discouraged workers and that was also placed in the incorrect Section, certification was properly denied. Maria Guadalupe Aguayo , 94-INA-220 (July 18, 1995).

The Board will not extend its rule stating that denial of certification may be inappropriate if the employer is willing to readvertise in rebuttal to a situation where the employer has sought to add a restrictive requirement after finding qualified US applicants. Diagnostic Medical Assoc. , 94-INA-548 (Oct. 31, 1996).

Remand is appropriate if the employer is willing to amend the application for readvertisement, even when the employer conditions its offer on a determination that its rebuttal is not persuasive. Jamron Drugs , 94-INA-550 (Oct. 31, 1996).

Where the Employer's evidence does not support findings of a full-time job, re-advertisement is not an available option and certification is properly denied. Here, Employer in rebutal to the NOF stated that Alien would teach "80% of the time and would teach carving and enameling 20% of the time, and "a full-time position is needed to effectively teach students the World class Russian technique (of wood carving and enameling)." The Employer included with the rebuttal a copy of news letter that made no mention of teaching or art instruction of any kind." Hudson River Gallery , 94-INA-246 (Jan. 17, 1996).

Employer's attempt to readvertise a position found to be unduly restrictive failed where the Employer was actually seeking an opportunity for further disputation with the CO rather than amending and readvertising in accordance with the CO's determination. Chemtex Int'l, Inc ., 94-INA-308, (May 31, 1995). See also Cesar Diosa , 95-INA-25 (July 24, 1996) (denying certification where the Employer failed to heed the CO's advice to re-advertise when he left out the requirement of a commercial driver's license for the position of milk driver, and where Employer instead argued that its advertisement was sufficient due to the cost of advertising and that the requirement of a commercial driver's license would be reasonably assumed by applicants).

The Board refused to remand a case where Employer requested to be allowed to amend its application and re-advertise if its arguments were not accepted. The Board reasoned that, here, Employer did not agree to delete the unduly restrictive job requirement. See GPF Sys., Inc. , 94-INA-301 (June 30, 1995). Lee Int'l Corp. , 94-INA-413 (Oct. 12, 1995).

The Board refused to remand a case where Employer requested to be allowed to amend its application and re-advertise if its arguments were not accepted. The Board reasoned that the request undermined the Employer's credibility because the application was being amended to change a non-supervisory occupation to 1 involving the supervision opf 15 employees. See Ms. Ruth Hai , 93-INA-111 (June 9, 1994).

B. Conforming to CO's re-advertisement instructions

The CO properly requested that the employer re-advertise the position where it used an incorrect job order number such that "the lack of response was at least partially due to the local job service agency's own inability to organize and refer any interested applicants." Eliezer & Hana Goldstock , 91-INA-73 (Mar. 24, 1993).

Labor Certification properly denied where employer refused to re-advertise position as directed by the CO in order to cure employer's inadvertent request that the state agency close the job offer less than 30 days after the ad first ran. Samuel Braverman , 92-INA-193 (Oct. 26, 1993).

C. NOF must state clear directions

D. Employer not bound by suggested publication

E. Re-recruitment under more restrictive requirements

Where an Employer rejected an applicant for not having a driver's license, a requirement not listed in the ETA 750A, where Employer in rebuttal had offered to amend the application and re-advertise with the new requirement, then the CO was not required to allow Employer to re-advertise, and properly denied certification because an employer may not seek belatedly to add even more restrictive requirements and use them as a basis for denying certification. 33 East Maintenance Corp./ Freehold Cartage Corp ., 94-INA-242 (June 27, 1995).

Where employer initially placed an advertisement in the wrong paper and then resubmitted it in the new, correct paper with an additional requirement that may have discouraged workers and that was also placed in the incorrect section, certification was properly denied. Cliff Claydon , 94-INA-220 (July 18, 1995).

Where CO finds job duties unduly restrictive, and gives Employer opportunity to redraft position and readvertise, and where employer merely added new duties but failed to an address underlying issue of unduly restrictive requirements, certification was properly denied. Gutierrez & Co. , 94-INA-529 (Feb. 26, 1996).

F. Readvertisement must be documented

Where employer agreed to reduce requirements and readvertise, employer's failure to document readvertisement is grounds for denial of certification. Shawnee Resort , 93-INA-539 (Aug. 25, 1994).

G. Harmless error in re-recruitment

1. Error in Form ETA 750

Panels have previously held that failure to amend the ETA 750A was harmless error where the employer had conducted re-recruitment on the terms ordered by the CO. See California Redwood Signs , 90-INA-348 (June 20, 1991). From the record it was apparent that it was the Employer's intent to amend its job duties, as evidenced by its re-advertisement on the terms requested by the CO and as evidenced by the rebuttal letter. Reversed and remanded. Mills Iron Works, Inc. , 94-INA-379 (June 22, 1995).

2. Error in readvertisement

H. Timeliness of rebuttal; ongoing recruitment efforts

I. Re-recruitment under less restrictive requirements

Panel held that in certain circumstances, a CO may, in his discretion, consider including a requirement, as part of an employer's cure of the defects, that employer attempt to offer the job to a U.S. worker previously rejected for failure to meet the originally stated restrictive requirement, but who meets all the stated requirements as changed. If such a U.S. worker can no longer be contacted, or is no longer interested in the job, then the employer would be required to conduct a new recruitment. Prima Royale Enter., Ltd. , 92-INA-262 (Sept. 20, 1993).