The Memorandum from Dale M. Ziegler talks about additional procedures that should be followed by Regional Certifying Officers (CO's) on evaluating RIR requests when available information indicates that there may have been layoffs in the occupation by the employer or layoffs in the occupation in the area of intended employment.

The Memorandum further requires that the following standard operating procedures be followed in evaluating RIR requests:

A. U.S. Worker Availability:

In determining whether an RIR should be permitted the Memorandum requires the Certifying Officer to assess the availability of U.S. workers. In making that assessment the Memorandum mandates that the CO shall:

"Consider recent regional office experience in processing non-RIR cases involving occupations similar to those for which the employer is requesting RIR. E.g., did a market test for similar occupations in the area of intended employment produce qualified U.S. worker(s) for those occupations?

Contact State agencies to obtain information on the labor market. Such information may be based, for example, on the State's recent experience in processing cases involving occupations involved in the employer's application, type of workers registered for unemployment benefits, type of workers registered in the states' job bank, or current labor market studies available from the state labor market information unit.

Review current relevant articles that may have appeared within the last 6 months in newspapers, trade or professional journals concerning the availability of workers in the occupation in the area of intended employment."

The Memorandum adds, if after evaluating all of the information obtained, the Certifying Officer is confident qualified U.S. workers may be available for the occupation involved in the RIR, the RIR request should be denied and returned to the state agency [SESA] for further processing. This will then result in the SESA sending out a letter to the Employer, requiring him to conduct supervised recruitment for the proffered position. Given the current backlog, the letter from SESA could take forever coming.

B. Establishment of Pattern of Recruitment:

The Memorandum categorically states, "the recent change in the economy should not change the established policy set-forth in GAL 01-97, change #1, regarding what is required of an employer applicant to show evidence of a pattern of recruitment for RIR purposes."

The Memorandum reminds Certifying Officers that, specifically, once it has been determined that RIR processing is appropriate for the area of intended employment and the occupation;

"Certifying Officer's are reminded that the following, and not more, are required:

one print advertisement in a newspaper of general circulation or a relevant journal, plus enough other activities to show evidence that a pattern of recruitment has been completed to adequately test the labor market for the occupation of the subject application. These may include a combination of: job order with the state workforce agency, internal company recruitment activities, company and commercial internet web page ads, Community, college or other job fairs, private employment agency, additional print advertisements

The Memorandum clarifies that it is ETA policy that when an RIR is denied, the application shall be returned to the SWA for regular processing in the order of the application's priority date. In other words, the Application should not be returned to the back of the queue, but treated as a regular application filed in order of the priority date established when the RIR Application was first filed with the Service. So, if the SESA's are processing cases received as of March 1999 and the application was filed in April 2002, it will be a year, before the SESA will respond in that case.

C. Layoffs in the Employer-Applicant Firm:

Layoffs pose a special problem. The Memorandum directs Certifying Officers to send out a letter to the Employer if there is reason to believe that the employer may have, laid off any workers within the last 6 months.

The Letter is expected to list the following questions:

1. Within the last 6 months has the [insert name of employer] laid off any workers in the occupation of [insert name of the occupation involved in the application and its DOT code]? If yes, provide the information requested below.
2. Provide the number of workers that were laid off from the occupation of [insert name of the occupation involved in the application and its DOT code]?
3. Provide documentation, by geographic area and worker, of the consideration given to the laid off workers for the position for which certification is sought. If any U.S. workers were rejected for the position for which certification is sought, the employer must provide the lawful job related reasons for each worker rejected.

If the employer responds satisfactorily to the inquiry concerning the number of workers, the application will be certified. If the employer declines to provide the requested information and/or documentation or otherwise does not respond satisfactorily to the letter requesting information about the number of workers laid off and theconsideration given to them, a Notice of Findings will be sent to the employer. This will notify the employer of the Department's intention to deny the application if the employer does not respond satisfactorily to the request about the number of workers it laid off and does not satisfactorily document the consideration given to the workers that were laid off, including the lawful job-related reasons for each U.S. worker that was rejected.

D. General Layoffs in the Industry or Occupation in the Area of Intended Employment After Filing the Application:

The Memorandum also addresses layoffs by other employers in the same industry. If the Certifying Officer has reason to believe that there have been layoffs by other employers that may involve the occupation involved in the employer-applicant's application subsequent to the test of the labor market, the Certifying Officer should provide the employer with the option of publishing one additional advertisement consistent with the advertisement provided in the original RIR application, or requesting that the application be remanded to the state for regular processing. If the employer chooses to run the additional advertisement, the employer will be instructed that, after allowing a minimum of two weeks for U.S. workers to respond, the employer is to submit a written result of this recruitment effort. This report is to be consistent in form with recruitment results provided in the RIR application. Based on the recruitment results, the Certifying Officer will have the option of approving or denying the RIR, or issue a Notice Of Finding, as deemed appropriate.

E. Layoffs by the Employer-Applicant Firm, and General Layoffs in the Industry or Occupation in the area of intended employment:

Finally, the Memorandum directs Certifying Officers to gather information about possible layoffs by the Employer-Applicant Firm and the Industry in general, before certifying an application. An onerous standard given the limited time and resources available to the Department.