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Labor Certification

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Interviewing U.S. Workers

As stated previously, under the standard labor certification recruitment process, any applicant who meets the minimum qualifications for the job in question must be interviewed. It is permissible to conduct telephone interviews when applicants reside a long distance from the location where the job is to be performed. The purpose of the interview is to find U.S. workers who are qualified, able and willing to perform the job. It is often difficult to determine whether an applicant is a U.S. worker or an individual who is in one of the nonimmigrant classifications (H-1B, J-1, etc.). For purposes of labor certification, the Department of Labor defines U.S. workers as U.S. citizens, permanent residents, refugees, and asylees. Since it is unlawful to ask certain citizenship-related questions, interviewers must be careful during the interview process and rely on the Department of Human Resources to assist them in developing appropriate questions and providing a list of “dos” and “don’ts.”

Following are some basic recommendations:

  • Contact applicants who appear to meet the minimum job requirements as soon as possible after receiving their resumes. Delays may be interpreted by the Department of Labor as a lack of good faith in recruiting.
  • Standardize the questions to be asked during the interview to ensure consistency.
  • Carefully document the interview session, i.e., questions asked, responses from the applicant, etc.
  • Honestly assess applicants' qualifications for the job based on the actual minimum qualifications.
  • Reject U.S. workers only for legitimate job-related reasons including (but not limited to ) the following:
    • Not having the required minimum education, training or experience. Note that rejecting U.S. workers for lacking skills that are necessary to perform the job is not acceptable if the required skills can be acquired by the individual within a "reasonable" period of time. According to the Department of Labor, the definition of "reasonable" will depend on the industry and occupation involved. This provision does not seem to change the fact that a U.S. worker's failure to possess the stated minimum requirements would constitute a lawful job-related reason for rejection.
    • Factors that may adversely affect the individual's ability to do the job such as bad work references, lack of English language proficiency, etc.
  • Carefully document the reasons that an applicant does not meet the stated minimum requirements for the position.

At the conclusion of the recruitment and interview processes, the employer must prepare a recruitment report that includes the following:

  • A description of the recruitment steps taken
  • The number of individuals applying for the position
  • The number of individuals hired
  • The number of U.S. workers rejected and the job related reasons for the rejections.