On October 1, 1996, the US Department of Labor (“DOL”) sent a directive to all State Employment Security Agencies (SESAs) outlining what DOL terms “Measures for Increasing Efficiency in the Permanent Labor Certification Process” (the “Directive”). The measures, which are intended to promote consistency and efficiency among DOL Regions and SESAs, include operating procedures and guidelines regarding the handling of reduction in recruitment requests.
Although reduction in recruitment (“RIR”) is not a new concept, prior to the issuance of the Directive the process has not gained universal acceptance nor given uniform treatment in all DOL Regions. For example, while the Region IV office in Atlanta has been very receptive towards RIR and accepted RIR requests with no restrictions with regard to occupations that meet the general criteria for RIR, the Region II office in New York City, only accepted RIR requests for a single occupation – specialty cooks.
The new directive is a clear attempt by DOL to eliminate the inconsistent treatment of RIR requests by the different Regions and to encourage all Regions to increase the use of RIR. This article reviews RIR in light of the recent directive.
What is Reduction in Recruitment?
Reduction in recruitment is a potentially time and cost saving procedure that can be utilized during the labor certification process to reduce the recruitment efforts normally required during the last step of the labor certification process. Through this procedure the employer is permitted to rely on recruitment efforts of the employer made prior to filing an application for labor certification. The employer is thus able to partially or completely forego post-filing recruitment efforts such as advertising and posting an internal notice. The reasoning behind permitting RIR is that the employer has already adequately tested the labor market and therefor additional recruitment efforts would only be duplicative.
An RIR request can result in significant time and costs savings. Some regions and SESA’s have implemented “fast track” processing for RIR cases allowing the case to process much faster than it would through the standard labor certification process. The employer maintains control over the recruitment process. If during the recruitment process it is etermined that a U.S. worker is available for the position, the employer is spared the time and expenses associated with filing the ETA-750 Labor Condition Application. If the position entails special requirements, the employer can demonstrate what the special requirements are and the impact that the special requirements have on the number of applicant responses with and without the special requirements.
When is RIR Available?
SESAs and Certifying Officers are to consider requests for reduction in recruitment in occupations with little or no availability and in circumstances as determined by individual Certifying Officers. A reduction in recruitment request will be granted only where the employer satisfactorily documents that the employer has adequately tested the labor market with no success. An employer may file an RIR request if it can demonstrate that the following conditions are present:
- there is little or no availability for the subject occupation;
- the application contains no restrictive requirements;
- the indicated wage meets the prevailing wage; and
- the employer can show adequate recruitment through sources normal to the occupation and industry within the previous 6 months.
The Procedure
To request an RIR the employer files a written request at the local Job Service office. The request is processed and reviewed at the local office for deficiencies in the application, such as inadequate wage offer or restrictive job requirements and then forwarded to the Regional Certifying Officer. When there are deficiencies in the labor certification application that would have affected the recruitment, the SESA may advise the employer that it is unlikely that the Certifying Officer will approve an RIR and suggest that the employer recruit through the regular process. An employer would be wise to heed such a recommendation by the SESA, as the RIR request when transmitted to the Certifying Officer will include the recommendation of the SESA, based on its knowledge of the labor market, for or against granting the request. However, the SESA may not discourage the use of RIR nor refuse to transmit a written request for an RIR to the Certifying Officer.
The Certifying Officer will review the comments of the local office and the documentation submitted by the employer for documentary evidence that, within the immediately preceding six months, the employer has made good-faith efforts to recruit U.S. workers for the job opportunity, at least at the prevailing wage and working conditions, and through sources normal to the occupation.
Among the factors to be considered by the Certifying Officer in making determinations on RIRs are the following:
- Adequacy of the recruitment conducted by the employer applicant, e.g., newspaper advertising, job fairs, internet.
- Documentation of normal recruitment practices in the industry and occupation furnished by the employer.
- Availability of U.S. workers for the occupation involved in the employer’s application for which recruitment has been conducted through the SESA in the past, as shown by ES referrals to job orders.
- SESA recommendations/comments.
- Certifying Officer’s knowledge of the local labor market.
After reviewing the application the Officer will notify the employer and the local (or State employment service) office of the Certifying Officer’s decision on the request to reduce, partially or completely, the recruitment efforts required of the employer.
The time for receiving a decision on an RIR request varies from region to region. However, because of the time saving feature of RIR for all parties concerned, RIR requests are generally looked upon favorably by DOL regional offices. In fact, as mentioned above, some regions and SESA’s have implemented “fast track” processing for RIR cases.
If RIR is denied by the Certifying Officer because the recruitment is not acceptable, the application shall be returned to the SESA for regular processing in the order in which it is received along with other= applications.
If the RIR request contains deficiencies, such as inadequate wage offer or restrictive job requirements, the Certifying Officer shall issue a NOF denying the RIR and citing the deficiencies.
The Outlook
The new directive would appear to indicate that RIR requests will now be utilized more widely in all DOL Regions, including Region II. However, the waters have yet to be tested since the new directive was received so it is much to early to estimate the effect that the directive has had, or will have, on the labor certification process in any particular Region. The good news is that Regions such as Region IV in Atlanta, that were RIR friendly before the directive was issued, will in all likelihood continue and maybe expand the use of RIR requests as a means of accelerating the the labor certification process. As for the Regions that were not RIR friendly prior to the directive, such as Region II, it is difficult to predict what the Directive’s practical effect will be until after RIR requests are submitted to these Regions, and we see how the particular Regions treat the requests. Our firm is currently preparing RIR requests for several DOL regional offices and will report any significant developments as we learn them.
The full text of the Directive is available in the Documents Collection at our web site.
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