The recruitment stage of the traditional labor certification process is crucial to the success of the labor certification. In this stage, the employer has a great responsibility, namely, that of making a good faith effort to recruit United States workers and rejecting United States workers only for lawful, job-related reasons.

In the labor certification process, employers are required to make a good faith effort to recruit United States workers. A failure to make a good faith effort to recruit is a basis for denying labor certification. As part of the recruitment, the employer must make timely contact with each applicant and interview each applicant which may be qualified for the job.

1) Timely Contact

To demonstrate a good faith effort to recruit, an employer must make timely contact with all applicants who submit a resume in response to the advertisement. It is well established that simply making contact within the 45 day recruitment period is not sufficient. In fact, the Department of Labor Regulations state that an applicant must be contacted with fourteen days of receipt of the resume. While it may not be possible to complete the interview within fourteen days after receiving the resume, at the very least some form of contact must be made within the fourteen day period.

Where an applicant is unavailable for the position and there was a delay in the contact, there is a presumption that the delay was a contributing factor in the unavailability. For example, when an applicant states that he is no longer interested in the position because he has just accepted another position it is arguable that the applicant would have been interested in the position (i.e., available) if he had been offered the position at an earlier date.

2) Manner of Contact

The employer must document the manner in which he attempted to contact each applicant. The contact may consist of telephone calls or a letter of invitation sent by certified mail, return receipt requested. It is important to keep accurate records of the employer's efforts, including the exact dates and times that telephone calls were made, whether the attempted contact was at the applicant's home or place of business, whether a message was left for the applicant and a copy of the letter of invitation sent to the applicant.

3) Interviewing - Investigating the Applicant's Qualifications

An employer is not required to interview an applicant if the applicant's resume clearly reveals that the applicant is not qualified. However, it should be noted that a resume is only a summary of accomplishments and does not necessarily include a reference to all skills, tools, utilities, software, hardware, etc. which may be relevant to the position for which labor certification is sought. Therefore, it is better to err on the side of caution and interview all applicants who may possibly be qualified. As with the issue of timely contact, a failure to investigate the applicant's qualifications can be a basis for denial of the labor certification.

In the labor certification process, an employer must document that United States workers were rejected solely for lawful job-related reasons. According to the Department of Labor, an applicant is deemed qualified for the position if he meets the minimum requirements for the position listed in Part A of the Application for Alien Labor Certification.

A few examples where it has been held that an employer's rejection of a United States worker was lawful are as follows:

• The applicant is not able to speak English.
• The applicant is not able to perform the main job duties, despite meeting the minimum specified requirements.
• An applicant does not have current knowledge of a subject and there is ample proof that the field is rapidly changing and the applicant's knowledge is old.
• The applicant has poor references.
• The applicant fails a test or questionnaire which is designed merely to confirm experience and not to test job performance.

A subjective reason for rejecting a United States worker is not necessarily unlawful. However, the employer must document how he came to the subjective reason and explain how the subjective reason relates to the job.

In sum, an employer must make a good faith effort to recruit U.S. workers and only reject U.S. workers for lawful, job-related reasons. To do otherwise, will result in a denial of labor certification.