DOL Announces New Conversion Regulation For Expediting
Labor Certification Applications
On July 26, 2000, the Department of Labor (DOL) published a proposed regulation in the Federal Register (Vol. 65, No. 144, 46081-46084) allowing employers with pending “traditional” labor certification applications to convert them into “fast-track” reduction in recruitment (RIR) applications while preserving the earlier priority date.
This proposal will help cases move faster. Although an employer can presently file a new application as an RIR, the DOL will not process the new application unless the old one is withdrawn. The loss of the earlier priority date as a result of the withdrawal could severely affect Indian and Chinese nationals as the visa numbers under the employment-based second and third preferences for these countries have retrogressed substantially. The new regulation would permit the employer to demonstrate recruitment within the past six months, thus enabling a conversion of the old case into an RIR without losing the priority date.
Labor certification is normally the first step for an employer to sponsor a foreign employee for lawful permanent residence. The employer must establish that there are no U.S. workers qualified or available within the area of employment for the position that has been offered to the foreign employee. Traditionally, an employer filed an application and waited for instructions from the local state office, known as the State Employment Security Agency (SESA), to conduct recruitment pursuant to DOL regulations under 22 CFR §§ 656.21(f) and (g).
In the preamble to the proposed regulation in the Federal Register, the DOL acknowledges that the backlog of applications for permanent alien certification in its regional offices and SESA increased dramatically since 1995. Between October 1994 and October 1998, the total backlog in both regional and SESA offices increased from 40,000 to 104,000 applications for alien employment certification. Regional office backlogs alone increased from 10,000 to 30,000 cases over that period, while backlogs in the SESA offices increased from 30,000 to 74,000 cases. The number of backlogged cases in SESAs on March 31, 1999 stood at about 86,000 applications. Due to these backlogs, it could take over 4 years for a labor certification application to be approved the normal way in some DOL regions.
The DOL introduced a number of measures, the most important of which was to encourage employers to file requests for RIR through a policy memo, General Administrative Letter No. 1-97, Measures for Increasing Efficiency in the Permanent Labor Certification Process (GAL 1-97). Request for RIRs are given expedited processing, if the employer can show that the labor market has been adequately tested within six months prior to the filing of the application. Once this is established, the DOL would waive additional recruitment under §§ 656.21 (f) and (g) and approve the case expeditiously.
The emphasis on the use of RIR by GAL 1-97 in appropriate cases, according to the Preamble, has worked well and contributed significantly to DOL being able to manage its increasing case load with limited staff resources. Backlogs in both the regional offices and SESAs would undoubtedly be substantially larger if the use of the RIR provisions in the regulations had not been encouraged by GAL 1-97, the Preamble notes.
Once the regulation is promulgated, it is anticipated that backlogs in SESAs could be substantially reduced if employers are allowed to have applications that were not originally filed as RIR cases and which meet the appropriate criteria removed from the SESAs processing queues and processed as RIR cases. Furthermore, reducing or eliminating the backlogs would facilitate the development and implementation of a new permanent employment certification system that DOL has been developing.
The proposed amendment to the RIR regulation will allow an employer to file a request to have an application filed on or before July 26, 2000, which has not been sent to the regional office, processed as a RIR request provided that no supervised recruitment has already taken place under DOL regulations.
The DOL’s rational for adopting a cut-off date of July 26, 2000, is to avoid any incentive on the part of an employer to file large number of cases, many of which may be inadequately prepared, simply to obtain a filing date and then covert such cases to RIRs on a future date. The date of filing of a labor certification application establishes the priority date for any future petition for classification under the employment-based immigrant categories.
For an existing case to convert to an RIR, the request should
be accompanied by documentary evidence of good faith recruitment
conducted within the six months immediately preceding the date of
The conversion regulation would not cover cases that have already been forwarded from the SESA to a regional office, especially if recruitment has already been completed under a SESA’s supervision. However, the proposed rule ostensibly does not cover cases that were forwarded to regional offices prior to any commencement of recruitment. Since the issuance of GAL 1-97, SESAs forwarded cases to the regional office if the job requirements were too restrictive or if they did not agree with the employer’s proffered wage for the position. Even though these cases were forwarded to a regional office, the proposed regulation should enable an employer to convert them into an RIR as no mandated recruitment took place.
This proposal would help many cases move expeditiously that
have not yet been processed for supervised recruitment at a SESA.
There are several thousand cases that were filed in late 1996 or
1997 that have yet to be processed by the New York or New Jersey
SESA. If the employer
conducts a new recruitment and establishes that there are no U.S.
workers for the position, these cases could be processed as RIRs
and be approved more quickly.
On the other hand, an application that has gone through supervised
recruitment and is held up at a regional office will not be covered
by this proposal. Hopefully,
the DOL will find other means to reduce non-RIR backlogs at its
Indeed, the Preamble notes that the DOL has made considerable
efforts to reduce backlogs in its regional offices.
As of late October 1999, the number of backlogged cases in
regional offices numbered 14,642.
To accomplish this large reduction in backlogs, regional
offices processed over 71,000 cases.
In addition to processing backlogged applications, the regions
had to keep abreast of the 47,800 new cases received from the SESAs
between the beginning of February and late October 1999.
The proposed regulation does not specifically address the ability of an employer to amend its application at the time of requesting a conversion. Since job duties and requirements may have changed over the past three or four years that the application has remained pending, it is quite likely that an employer would also wish to amend the job on the application. DOL should allow flexibility in allowing amendments to job descriptions when an employer requests conversion from a traditional case to a RIR.
The announcement in the Federal Register invites interested persons to submit written comments on the proposed rules on or before August 25, 2000. The regulation is presently in the form of a proposal and has yet to take effect.
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City.He is the trustee of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award.He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-686-1581 or firstname.lastname@example.org