Did you actively recruit U.S. workers, contact former U.S. employees, and document every applicant's lawful disposition?
U.S. worker recruitment is the *test of need* for H-2 status under 20 CFR § 655.135. Required steps: SWA job-order posting, two newspaper ads (one Sunday, one weekday), three additional steps for H-2B (employer website, professional journal, etc.), and *positive recruitment* of former employees from the prior season. Every applicant must be interviewed in good faith, every rejection memorialized in writing with a lawful job-related reason. DOL and USCIS audit recruitment files and a single "didn't return our call" without follow-up documentation can void the petition.
Context & Examples
Real example — Tracy almond grower. We built a recruitment binder: SWA posting screenshots with date stamps, two newspaper tear sheets (Stockton Record + Modesto Bee), positive-recruitment phone log of all 14 prior-season U.S. workers (3 returning, 11 with documented declines — "moved out of state," "now working a year-round position," "unable to relocate to housing"), 7 California Job Service applicants interviewed, 5 rejected for documented job-related reasons (3 lacked tractor experience, 1 had a positive drug screen, 1 declined the housing requirement). PERM-equivalent recruitment file: 47 pages. DOL audit cleared in one round.
Horror story — Sacramento valley 2023. A peach grower documented zero contact with prior U.S. employees, no newspaper ad in the second-largest local paper, and could not produce written rejection documentation for 4 of 9 applicants. DOL auditor: "This is not good faith recruitment." TLC denied. 18 workers stranded in Mexico with visa appointments scheduled. Grower hired domestic labor at premium price ($28/hour) and operated at a loss for the season.
Why an attorney is essential: Good-faith recruitment is the most subjective standard in H-2 practice. We treat every recruitment file like an evidentiary record.
Sources