The Required Recruitment Steps and the Order They Must Follow
Recruitment in the permanent program is not a search. It is a prescribed sequence with fixed durations and a quiet period before filing, and a case that satisfies every substantive requirement is still denied if a step landed on the wrong side of a window.
The rule in short
For a professional position the employer must place a job order with the state workforce agency for a set period and run two Sunday advertisements in a newspaper of general circulation, then complete three additional steps drawn from a list in the regulation. No step may be older than the outer limit before filing, and other than one permitted additional step, all recruitment must conclude before a quiet period that runs up to the filing date. A signed recruitment report records the outcome.
Recruitment in the permanent program is a prescribed sequence. Every step has a required duration, an earliest permissible date and a latest permissible date, and the application may be filed only when all of them line up. A case that found no qualified domestic applicant and documented the search perfectly is still denied if one advertisement ran a day too late.
The two mandatory steps
The first is a job order placed with the state workforce agency serving the area of intended employment, running for a period fixed by regulation. The start and end dates entered on the application serve as the documentation, so the confirmation from the agency should be captured anyway.
The second is advertisement on two different Sundays in a newspaper of general circulation in the area of intended employment. The paper must be the one most appropriate to the occupation and most likely to bring responses from able, willing, qualified and available domestic workers. Where the area has no Sunday edition, the edition with the widest circulation substitutes. The content rules for both are set out under the state job order and the print advertisement rules.
The three additional steps
A professional position requires three further steps chosen from a list in the regulation. The list runs to job fairs, the employer's own website, a job search website other than the employer's, on-campus recruiting, trade or professional organizations, private employment firms, an employee referral program with incentives, a campus placement office, local or ethnic newspapers, and radio or television advertisements.
The choice is the employer's, but it is not free. Each selected step must be a genuine recruitment effort, must be documented with something dated, and must be capable of being explained to an auditor as a reasonable way to find domestic workers for that occupation. An employee referral program that has no written incentive, or a website posting with no capture showing the dates it was live, will not survive review.
| Step | Required for | Duration | Documentation kept |
|---|---|---|---|
| State job order | All positions | A fixed period set by regulation | Agency confirmation with start and end dates |
| Two Sunday advertisements | All positions | Two separate Sundays | Tear sheets naming the paper and date |
| Professional journal advertisement | Optional substitution | One placement | The cover and the page bearing the ad |
| Three additional steps | Professional positions | Varies by step | Dated capture, invoice or roster |
| Notice of filing | All positions | Ten consecutive business days | Signed copy showing the posting dates |
The timing windows
Three constraints operate at once. No recruitment step may be older than the outer limit measured back from the filing date. All recruitment other than one permitted additional step must conclude before the quiet period that runs up to filing. And the notice of filing has its own posting window inside those boundaries.
The quiet period exists so that any domestic worker who responded late has time to be considered. Its practical effect is that the employer cannot file the moment the last advertisement runs. Exactly one of the three additional steps may consist solely of activity inside that period; everything else must have finished before it opened.
Layered on top is the wage determination, whose validity window must contain the filing. The interaction between the wage window and the recruitment windows is where most scheduling errors occur, and the wage side is treated under prevailing wage determinations and the four wage levels.
Sponsors start with the first advertisement and hope the filing lands correctly. The reliable method is the reverse: fix the intended filing date, subtract the quiet period, place the last mandatory step immediately before it, then work back through the job order and the additional steps, and confirm that the earliest step still falls inside the outer limit. A single spreadsheet with those dates prevents nearly every denial in this area.
The recruitment report
The employer prepares a signed report describing the recruitment steps undertaken and their results, the number of hires, and the number of domestic workers rejected, categorized by the lawful job-related reasons for the rejection. It is signed by the employer, not by counsel or by a recruiter acting alone.
The rejection reasons carry the weight. A domestic applicant may be rejected only for lawful job-related reasons, and the reason must connect to the requirements stated on the application. An applicant rejected as overqualified, or as unlikely to stay, has been rejected for a reason that is not job-related, and one such entry can end the case. Where the stated requirements exceed the occupational norm, the employer must also be ready to justify them, which is treated under business necessity for requirements above the normal minimum.
Retention and what an audit will want
The recruitment report and every resume received are retained for years after filing. So are the tear sheets, the job order confirmation, dated captures of any online posting, invoices for job fairs or agencies, and the signed notice of filing. None of it is submitted with the application; all of it must be producible on demand within a short deadline, as described under the audit notification and the supervised recruitment that can follow.
The failure mode is organizational rather than legal. Recruiting teams archive by requisition and delete after a hiring cycle; immigration cases are audited long afterward. Sponsors that copy the entire recruitment record into the case file on the day of filing never have this problem, and those that do not almost always do. Employers running a first case usually have labor certification attorney involvement set the calendar before any advertisement is placed, because the sequence cannot be corrected once it has run.
Points to carry away
- The two mandatory steps for a professional position are a state job order and two Sunday newspaper advertisements.
- Three additional steps must be selected from a list set out in the regulation.
- No recruitment step may be older than the outer limit measured back from the filing date.
- Only one of the additional steps may consist solely of activity inside the quiet period before filing.
- A signed recruitment report describes each step and the lawful reasons any applicant was rejected.
- Resumes and the supporting documentation are retained for years after the filing and produced only on audit.
Questions readers ask
What is a professional position for these purposes?
One for which a bachelor's degree or higher is a usual requirement for entry into the occupation, as identified in an appendix to the regulation, or one the employer establishes ordinarily requires such a degree. The classification matters because a non-professional position requires only the two mandatory steps, while a professional one adds three more. Misclassifying a position as non-professional and running only two steps is not curable after filing; the case has to be started again.
Can the same advertisement satisfy two different steps?
Generally not. Each step must be a distinct recruitment effort, and an advertisement placed once cannot be counted both as a mandatory Sunday advertisement and as an additional step. The exception is narrow: where a single placement genuinely produces two independent efforts, such as a print advertisement that the publisher separately posts to its own job site, the employer must document both placements and their separate durations. Relying on that argument without documentation is a poor risk.
How long must recruitment records be kept?
Supporting documentation is retained for a period of years running from the filing of the application, whether or not the case was audited. That includes the tear sheets, the job order confirmation, dated screenshots, the recruitment report and every resume received. Employers that discard resumes after a hiring cycle discover the problem only when an audit arrives, and by then the material cannot be recreated. Store the recruitment file with the case, not with the recruiting team.
Sources
- eCFR — 20 CFR 656.17, Basic labor certification processThe mandatory and additional recruitment steps, the timing windows and the recruitment report.
- eCFR — 20 CFR 656.10, General instructions for labor certificationThe notice of filing, the employer's obligations and the retention period for documentation.
- eCFR — 20 CFR 656.18, Optional special recruitment for college and university teachersThe alternative competitive recruitment route available for certain teaching positions.
- eCFR — 20 CFR 656.40, Determination of prevailing wageThe wage determination whose validity window must contain the recruitment or the filing.
- eCFR — 20 CFR 656.20, Audit proceduresWhat the recruitment documentation must be produced for, and on what deadline.
- Foreign Labor Application Gateway — Permanent labor certification programThe filing system, the form and the program instructions.
Lawwise is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
More in Immigration Sponsorship
Withdrawing and Refiling a Labor Certification
Requests to modify an Application for Permanent Employment Certification are not accepted once it is filed. An employer that needs a different job title, wage, worksite or requirement must withdraw and refile. Withdrawal does not erase an audit notification already issued, does not preserve the priority date, and does not extend the validity of recruitment beyond the windows the regulation sets. The refiled case is new in every respect except the retention duty, which attaches to both.
Tentative Nonconfirmations and the Right to Contest
When an electronic verification case returns a mismatch, the employer notifies the employee privately, provides the written further action notice, and lets the employee decide whether to contest. If the employee contests, the employer refers the case and hands over the confirmation stating the employee's deadline. Throughout, the employer may not terminate, suspend, reduce hours, withhold pay or training, or delay a start date. Only a final nonconfirmation permits action.
Successor Employers and the Records They Inherit
A buyer acquiring a workforce chooses between adopting the seller's employment verification forms and completing new ones, and adopting them means inheriting their defects. Wage attestations pass to a successor only where it assumes the predecessor's obligations in a sworn statement placed in each public access file. An approved labor certification and its priority date may follow a successor that assumed the predecessor's rights and assets. Program enrollment does not transfer to a new entity.