31 Jul Labor Certification Conversion Regulations
All skilled and unskilled workers who wish to obtain an employment-based green card in the United States must obtain a Labor Certification (LC) from the Department of Labor (DOL). The issuance of an LC attests that there are no qualified, able, willing or available U.S. workers to fill the job position. Then and only then can a foreign worker apply for an Immigrant Petition for an Alien worker (I-140), and, eventually, a green card.
In recent years, the LC process has slowed to the point of frustration. Cases which previously took six months to process are now looking at four plus years. This does not include the additional processing times at the I-140 or the green card application stages. Many people hoped to re-file their cases under the DOL’s expedited LC process, also known as reduction in recruitment (RIR). However, by re-filing the LC as an RIR, they would lose the priority date of the original case, and possibly their chances of getting a green card in the U.S.
After much pressure and negotiation, the DOL published a proposed rule on July 26, 2000. In an attempt to improve LC processing times, DOL will allow employers to convert LC cases into RIRs without losing the priority date. This would also permit applicants who filed their cases prior to January 14, 1998 to safeguard their chance to adjust status in the U.S. Applicants who filed after January 14, 1998 will have to leave the U.S. in order to obtain a green card, thereby subjecting themselves to a three- or ten- year unlawful presence bar.
The DOL’s proposed rule specifically limits who may apply for a conversion:
1) The LC must have been filed pre-July 26, 2000;
2) The LC must not have been sent to the regional DOL office.
3) The LC must not have entered the advertising phase.
These requirements will severely limit the number of cases which are eligible for conversion to RIR. Most of the processing time in a LC is not at the State level, but at the DOL level. Hence, a regulation which specifically limits conversion to LCs pending with the State is hollow. In addition, even cases at the State level are limited to those which have not entered recruitment. A case enters recruitment anywhere from three months to one year after being filed. This is nothing but an additional limitation on the number of cases that can be considered for conversion.
Additionally, it should be noted that the withdrawal or denial of a LC in favor of an RIR can still qualify an alien under 245(i). It is not necessary to request a conversion in order to preserve the pre-January 14, 1998 priority date. According to the memorandum issued on April 14, 1999 by the INS Executive Associate Commissioner, even petitions which have been denied, revoked or withdrawn are still eligible under 245(i) so long as the initial petition was approvable when filed. An alien can still receive a green card in the U.S. without leaving, using the priority date of the initial LC filing.
Contrary to popular belief, not all cases should be filed for conversion or RIR treatment. Some cases are much better off in the traditional queue. Although it may take longer to see an approval, there may be a better chance of having the case approved. This depends in large part upon the job title, job duties, the employer’s business, the job requirements, and the job market. It should be remembered that an RIR filing or conversion requires substantially more advertising than is done in the LC filing. Traditional filings typically require only three days of advertising in the appropriate newspaper or journal. RIR filings require extensive advertising over a period of up to six months in multiple sources including newspapers, Internet, job agencies, etc. More advertising for a longer period of time means added exposure, and the possibility that there will be qualified U.S. workers who apply for the position.
There is a French expression that Everything new seems beautiful. A close examination of what the DOL proposes indicates that it may not be so attractive after all. Converting an LC into an RIR, or withdrawing your current LC in favor of RIR treatment has consequences both positive and negative. Only an experienced attorney with a specialization in employment-based immigration who is familiar with the current employment trends can assist you to determine which course to pursue. Attorneys who merely dabble in employment-based applications lack the experience and specific knowledge of the job market to predict and advise as to whether a conversion or re-filed RIR is feasible or whether traditional, but safe, LC is appropriate.