6.1 Must employers include recruitment results and documentation in the labor certification filing?

No. The final rule requires employers to maintain documentation of the recruitment efforts that were undertaken and the results thereof, including the lawful job-related reasons for rejecting U.S. workers who applied for the job, but the documentation does not need to be submitted with the application. U.S. workers who could acquire skills in a reasonable period of on-the-job training could not be rejected.

Note that employers will be required to retain documentation of recruitment efforts for five years, measured from the date on which the application for labor certification is filed with DOL.

6.2 What must the recruitment report contain?

The employer or his/her representative must sign a report describing the recruitment steps undertaken and the results achieved, the number of hires, and if applicable, the number of U.S. workers rejected, characterized by the lawful job related reasons for such rejections. Employers will be required to maintain recruitment reports with sufficient detail to assess a match of job applications against specific positions, though recruitment reports need not identify individual U.S. workers who apply for a job opportunity. Resumes and other documentation must also be maintained. In the event of an audit, the Certifying Officer may request the U.S. workers’ resumes or applications, sorted by reasons the workers were rejected.

6.3 Is there a notice and/or posting requirement?

Yes. Employers must give notice of the planned filing of the labor certification to the employees’ bargaining representative in the area of intended employment if there is such a representative. If there is no bargaining representative, employers will be required to post a notice about the job opportunity for 10 consecutive business days in a conspicuous place at the location of employment. The notice will need to be posted between 30 and 180 days prior to filing the application. Moreover, in a departure from current law, employers must publish the notice in any and all in-house media normally used to fill positions in the organization, in accordance with normal procedures used for recruitment for similar positions in the organization. The notice must: (1) state that it is being provided as a result of the filing of a labor certification for the relevant job opportunity; (2) state that any person may provide documentary evidence bearing on the application to the DOL; (3) provide the address of the appropriate Certifying Officer; (4) contain all of the information now required in advertisements; and (5) state a rate of pay.
Interestingly, the DOL takes pains in the supplementary material with the rule to point out that Congress’s primary purpose in promulgating the notice requirement was to provide a way for interested parties to submit documentary evidence bearing on the application for labor certification rather than to provide another way to recruit for U.S. workers.