Regulations Allow Labor Certifications to Process Faster

The U.S. Department of Labor (DOL) published the regulations allowing traditional labor certification applications to be converted to “Reduction in Recruitment” (expedited) labor certification cases. The final regulations, effective September 4, 2001, allows an employer, in certain circumstances, to file a request with the State Employment Security Agency (SESA) to have any application filed on or before August 3, 2001, to be processed as a RIR request. This opportunity to convert traditional labor certification applications to RIR cases without having to withdraw the original application allows the employer to retain the original priority date for processing.

The labor certification process is necessary for aliens to gain permanent employment in the U.S. Before the Immigration and Naturalization Service (INS) may approve petition requests and admit certain immigrant aliens to work permanently in the U.S., the DOL must first certify to the INS that:

(1) There are not sufficient U.S. workers, who are able, willing, qualified, and available at the time of the application for a visa and admission into the U.S. and at the place where the alien is to perform the work; and

(2) The employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers. If the DOL determines that there are no able willing, qualified and available U.S. workers, and that employment of the alien will not affect adversely the wages and working conditions of similarly employed U.S. workers, the DOL issues a permanent alien labor certification.

This is the first and most complex step in gaining lawful permanent residency in the U.S. (the “green card”) through an employer. After a labor certification application is approved, then the sponsoring employer can file an immigrant visa petition for the immigrant worker. Once this petition is approved and a visa is currently available for the employee, the employer files an application for lawful permanent residency based on this visa.

Obtaining an approval through labor certification takes time because SESA offices are experiencing significant backlogs in processing these cases, especially since the extension of ? 245(i). The “Reduction in Recruitment” process reduces this backlog of labor certification applications for permanent employment, allowing the immigrant worker to obtain approval much faster.

The RIR provision may be utilized when the labor market has been adequately tested within six months prior to the filing of the application. A labor certification application submitted as an RIR request essentially involves certain required recruitment efforts for the position sought by the alien worker conducted in the prior six months, and a demonstration that there is no willing, qualified, or available U.S. worker for that position. However, it is important to note that RIR processing can only be used for certain employment positions. Occupations enumerated on “Schedule B”-like housekeepers-cannot be utilized the RIR processing, while occupations identified as in shortage-described as “Schedule A” occupations-do not require recruitment at all, e.g., registered nurses and physical therapists.

These published regulations do not change any of the substantive requirements for obtaining an RIR type labor certification nor does it materially diminish any of the protections afforded U.S. workers. It merely permits employers to request that applications filed under the basic labor certification process to be converted to RIR processing without losing their original filing priority date. The issue of priority dates are important, since INS regulations state that “the date the request for certification was accepted for processing by any office within the employment service system” essentially determines the alien’s place in line for visa processing.

The new regulations also clearly delineate the type of labor certification applications that can be converted to RIR. These cases must have been filed by August 3, 2001, and cannot have begun SESA-ordered recruitment.

The regulations also state explicitly that applications for basic labor certification may not be converted to RIR processing and retain the original priority date if substantive changes are made to the applications, like the nature of the job and/or its core responsibilities. However, minor changes to job duties or the wage are acceptable and will not require the filing of a new application.

Additionally, requests to convert currently filed labor certification applications to RIR cases must be accompanied by documentary evidence of good faith recruitment conducted within the six months immediately preceding the date of the request. Requests are generally granted, unless they are not timely made.

To find out whether you are eligible to convert your basic labor certification application to an RIR application, or to examine whether you are eligible to apply for a labor certification, consult with an experienced immigration firm.