Listserv Q&A for "Labor Certification with Joel Stewart"
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Question:
I am not an attorney, but I am listening in on the labor
certification conference. I have read the memo to COs from Dale Ziegler,
and I work for a university which is anticipating layoffs. Point 2 states
that if the employer lays off workers we should provide documentation "of
the consideration given to the laid off workers for the position for which
certification is sought."
1. Do you interpret this to mean that we will have to actively recruit
these laid off workers for the position in question, or do we only document
our response to laid off workers who inquire about the position.
2. How long is the prevailing wage assessment for an RIR valid? If we
obtain it at the beginning of the process, will it be valid if six months
have passed by the time we submit the ETA-750?
Answer from Joel Stewart:
1. I think the Employer should seek out laid off
people who might qualify by any combination of experience, education and/or
training. This should be well documented.
2. Logically, the prevailing wage
should be valid from the time the SESA reviews it. Generally the Certifying
Officers should only invalidate the wage if they find that it was invalid
at the time it was calculated, i.e., the calculation was defective or the
survey was not satisfactory. I have heard of situations where the CO has
recalculated the wage to current wage standards. This might occur when a
long interval interrupted the process, especially if readvertising is
required for any other reason or if an additional recruitment is required.
In RIR the interval should not be so long as to raise the prevailing wage
issue. Don't forget that an approved labor certification is valid
indefinitely. This shows that the DOL is not concerned with updated
information after processing a case. The approved labor certification shows
that the Employer complied with the regulations, but it is not necessary to
reopen a labor certification after it is approved. Be sure that you have
properly dealt with the Level I - Level II issue, so that the prevailing
wage has indeed been properly calculated. In RIR cases the wage is not
usually advertised, or if it is, it can be in a range.
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