 THE ABC'S OF IMMIGRATION - LABOR DEPARTMENT ISSUES LONG AWAITED LABOR CERTIFICATION CONVERSION REGULATION
Last Friday the Department of Labor finally released the long awaited regulation for converting traditional labor certification applications into requests for reduction in recruitment. Under the new rule, applications for labor certifications that were filed on or before August 3, 2001 may be converted to reduction in recruitment cases. The DOL hopes that this will help state employment security agencies and regional DOL offices reduce the backlogs of pending applications, and allow for the implementation of a completely new labor certification program. The new rule will become effective on September 4, 2001.
The purpose of the labor certification process is to ensure that there are no US workers available for the position, and to ensure that the wages and working conditions for the job are not such that they will adversely effect wages and working conditions for similarly employed US workers. When the labor certification workload began increasing in 1996, the DOL began promoting the reduction in recruitment process. Under RIR, the employer can conduct advertising on their own, instead of under the supervision of the state employment security agency. If the self conducted recruitment is satisfactory, the application is quickly approved, reducing the caseload at the SESA. Much of the backlog has been reduced, and it is hoped that this conversion regulation will lead to further reductions. Another benefit the conversion regulation will provide is that the conversion can occur without the loss of the priority date. Currently, the employer could withdraw the labor certification application and refile it as an RIR application, but would lose the priority date in doing so.
The most important aspect of the new rule is which cases can qualify for RIR conversion. First, the case must have been filed on or before August 3, 2001. Second, the request for conversion must be made before the SESA places a job order. Even if corrections are needed in the labor certification application, it can still qualify for RIR conversion; however, where the corrections are such that it is unlikely the application will be approved as a request for RIR, the SESA should advise the employer of this. In cases that have been sent to regional DOL offices without having been approved by the SESA (this occurs when the employer challenges SESA determinations, such as the prevailing wage), when the DOL remands the case to the SESA, a request for conversion may be filed.
When the conversion request, along with other documentation required for an RIR application, is submitted to the SESA, this evidence is to be added to the file, which is to be transferred from the regular labor certification line and into the RIR line. While some of these converted cases will have priority dates earlier than other RIR cases already filed, the converted cases will be processed based on the time at which they were placed in the RIR line, not by priority date.
| 
