A JVA update

[B]By FRANK GIBSON[/B] [I]Special to the Saipan Tribune[/I] [B]Question: In your Oct. 18 article you mentioned that David Gulick had said that he didn’t think that radio announcements met the good faith effort standard to determine if qualified U.S. workers were available. Later in the week, a story ran in the Marianas Variety that said that it was okay to advertise on the radio and the TV. Which is right?[/B]

My article said: “I am aware of employers advertising on the radio, which Mr. Gulick said, in his last presentation at the Saipan Chamber meeting, would not meet the “good faith effort” standard, and of others that are advertising only once, which would also seemed to fall short.”

This caused great concern among some folks, who contacted the Saipan Tribune editor, who passed their concerns on to me in a manner which he said was much more temperate than how it was expressed to him. I was concerned also, because I’m careful about what I write. So, I checked with several people that were present and they confirmed Mr. Gulick’s comment. I see no need to change that statement.

However, things have moved on positively as a result of their concern and I wish to applaud that and help employers to be aware of new information on this issue. The concerned folks did accomplish something significant by contacting Ms. Marie Sebrechts, USCIS Southwest Region Media Manager, who responded:

[I](Unidentified Concerned Person), It was nice speaking with you.

To clarify…

There are no specific requirements for advertising job vacancies in relation to filing an I-129CW for a CNMI-only Transitional Worker position. Employers must complete and sign the Employer Attestation (supplemental sheet to I-129CW petition) in which they confirm that there are no qualified U.S. workers available for the position.

USCIS does not dictate how an employer determines that there is no qualified U.S. worker available. The employer must use his or her own judgment in advertising a job so that he/she can make this attestation. Any form of advertising would be acceptable if it provided sufficient opportunity for people to hear about a job – including, but not limited to TV, radio, print, online… An employer can submit evidence with the I-129CW petition of how he/she decided no qualified U.S. worker was available (e.g. how, when, where, how often advertised) or should be able to explain this should USCIS ask for evidence.[/I]

So there—now it’s clarified. Well, maybe. More on that thought in just a moment.

Another individual, attempting to clarify this matter, contacted Mr. Gulick, citing the inquiries being received as to whether radio announcements are acceptable evidence of a good faith effort to recruit U.S. workers, and asked if USCIS had any position on this issue. Mr. Gulick, with his well-known and charming succinctness, replied: “We do not.” His position-reply does not alter my position on his earlier comment.

Let me clarify. My intent in writing these articles is to offer the reader the best human resource management information and advice I can provide through personal HR knowledge and experience and through research. Sometimes it conflicts with other individual’s interests. For those whose interests involve non-compliance with the law or abusing the trust of their employees, I have no sympathy or regret. For those individuals also doing their best to assist employers and workers, conflict is not intended, but sometimes does result from differing perceptions.

In this case the conflict of opinions has worked out to everyone’s advantage, especially employers, because they now have guidance from USCIS that was not provided in writing or in this much detail before. Despite Ms. Sebrechts’ statement “that there are no specific requirements for advertising job vacancies” and Mr. Gulick’s few and I’m sure well-chosen words about the USCIS position on the issue, “We have none,” Ms. Sebrechts has stated that all forms of advertising are acceptable. This is more direct guidance than was provided in the Final Rule Q&A, and more than Mr. Gulick expressed in his 49 or so programs during his visit here.

However, not to be overlooked, the burden is still on the employer to make the attestation that no qualified US workers were available for the position(s). Assuming the content of the advertisement was reasonable in its requirements and period of announcement, the employer, if challenged on the form of advertisement, can say “I used my best judgment.”

In answer to the question, it’s not a matter of which is right. Things have moved on. All advertising methods now officially appear to be acceptable—well, not smoke signals or sand-writing. Use your best judgment!

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[I]Frank L. Gibson, SPHR, GPHR, owner of HR Support, CNMI, has been a resident of the CNMI for more than 14 years. One of the founding members of the CNMI Chapter of the Society for Human Resource Management, he has worked both as a line-manager of human resources and in the Human Resource Office.[/I]