March 20, 2002 - The U. S. Department of Labor issued a memorandum addressing Reduction in Recruitment (RIR) labor certification applications in light of increased layoffs in various areas. The memo provides guidelines on how the Certifying Officers (CO) should address RIR labor certification applications when layoffs occur.

RIR labor certification applications are based on recruitment during the six-month period preceding the filing of the application. If upon examining the application the CO has reason to believe that the company may have laid off any workers within the last six months, regardless of whether it is subsequent to the original test of the labor market, the CO will send a letter to the company requesting for the following information:

• number of workers that were laid off from the occupation that is the subject of the labor certification application;
• documentation, by geographic area and worker, of the consideration given to the laid off workers for the position for which certification is sought; and
• if any U.S. workers were rejected for the position for which certification is sought, the company must provide the lawful job related reasons for each worker rejected.

If the CO has reason to believe that there have been layoffs by other employers in the area of employment that may involve the occupation, the CO should provide the employer with the option of (1) publishing one additional advertisement consistent with the ad provided in the original RIR application or (2) requesting that the application be remanded to the state for regular labor certification processing.

Additionally, the memo provides clarification that one print advertisement in a newspaper of general circulation or a relevant journal, along with other evidence of recruitment in the six months prior to filing the application, would establish a “pattern of recruitment” for Reduction in Recruitment processing. The pattern of recruitment would demonstrate that the company adequately tested the labor market for the occupation sought on the labor certification application.

In subsequent discussions, Department of Labor representatives have indicated that additional clarification of the memorandum may be forthcoming in the near future. Berry, Appleman & Leiden attorneys will continue to work with the U.S. Department of Labor to clarify the new guidelines, and with our clients in complying with them.