RIRs and 245(i) - Some Special Considerations
The totality of circumstances surrounding all labor certification cases filed in the period immediately preceding April 30, 2001, raises many considerations which may argue against RIRs and for the regular process.1 These considerations are discussed below.
For over two years the USDOL has divided RIR cases into two categories: the so-called "shortage cases" and the so-called "non-shortage cases."2 The former category includes most software occupations, specialty cooks, and many other occupations. The latter category includes all the other occupations.3 In adjudicating cases involving the so-called "non-shortage" occupations, many USDOL Regional Certifying Officers (COs) regard the employer's good faith as particularly important. That is, if the CO is convinced that the employer showed good faith to US workers during the recruiting effort, the RIR is approved. On the other hand, if the CO is unconvinced of the employer's intentions, such cases are often sent back for regular (non-RIR) recruitment. If an RIR application is filed in the two weeks immediately preceding April 30, 2001, and if the recruitment commenced after December 20, 2000, the application may give the impression that the employer recruited against a deadline imposed by statute, and not based on business considerations. Such recruitment efforts may be viewed by some COs as bad-faith recruiting and such RIR cases may be remanded for the regular process. This is particularly likely for cases involving the so-called "non-shortage" occupations. Attorneys may then be in the difficult position of explaining this point to employers who did indeed recruit in good faith and yet received a hostile evaluation of their recruitment by USDOL.4
It has been INS practice that immediate relatives of 245(i) beneficiaries are also grandfathered for 245(i) purposes. This applies not only to immediate relatives at the time when the labor certification application is filed, but also to future immediate relatives.5 So filing regular labor certification applications in April 2001 may protect a client better than filing an RIR in May/June 2001. Some aliens might appreciate attorneys securing them additional peace of mind, and other aliens might prefer to have their future marital choices widened to include overstays and EWIs.
Large numbers of RIRs are currently being prepared by lawyers throughout the country. It may take some time for USDOL to adjudicate these. RIR processing times will inevitably lengthen for most of 2001. Particularly in less populated states which have good limited review processes in place, it may in fact be faster to file labor certifications as regular cases, rather than RIRs. Even when limited review is not available, the difference in processing times between regular cases and RIRs for the less populated states may not be huge.
USDOL proposed a regulation in July 2000 to permit the conversion of regular cases to RIRs.6 Apparently, little comment was received in response to the proposed rule. USDOL indicated that they were hoping to implement the interim proposed rule in January 2001. While this date has obviously been pushed back, there is reason to hope that this rule will become law in a few months. Due to the tens of thousands of labor certification applications expected before April 30, 2001, USDOL has cause to extend the forthcoming rule to apply to these applications also. So, even if an attorney files a regular case now, there is still some reason to hope that the case may benefit from RIR processing later.
As detailed in my previous article on 245(i), there is reason to believe that law firms will find their offices swamped with potential clients in the last two weeks of April 2001. If all pending RIR cases have already been filed by then, attorneys will be in a position to take in additional new cases. If not, then attorneys and their staffs will have to juggle taking new labor certification cases while at the same time filing RIR cases taken on earlier in the year.7 It is a law-practice management issue - do you want your staff to be working 20 hours a day, living mostly on coffee at that time? More to the point, is it better for your clients to have their RIR cases prepared at 2:00 a.m. on April 28, 2001, or is it better for them to have your office file a regular case now, when you and your staff can be at your peak efficiency and prepare a perfect item 13 on the ETA 750A form? A good side-effect in filing all RIR cases before April 15, 2001, is that your bank balance will potentially benefit from being able to take more cases.
Practice Pointer for Attorneys:
For all the reasons mentioned above, it may be a good idea to file labor certification applications through the regular process until April 30, 2001, and to wrap up all ongoing RIRs as quickly as possible.
1 Not so long ago (before October 1996), most attorneys did labor certifications through the regular process, not as RIRs. Now, RIRs are in fashion almost everywhere. Apparently at this writing, many attorneys are preparing many Employment-Based 245(i) cases as RIRs.
2Despite the fact the US unemployment rate has been below 5% for quite some time, the USDOL persists in doubting employers who have great difficulty filling positions.
3The specific occupations differ depending on which USDOL Region the labor certification is filed in.
4The good faith issue does not apply to regular cases, since in regular cases the recruitment is SESA-supervised.
5No regulations exist on the grandfathering of derivative beneficiaries of 245(i) aliens. No INS memo exists on this point either, despite INS promises to the effect. What does exist is a memo from then AILA General Counsel Ron Klasko to AILA members on October 5, 1998 clarifying that the above is the INS interpretation. Attorneys I recently spoke to on actual INS actions confirmed that INS was in fact grandfathering future relatives for 245(i) purposes ever since Jan 14, 1998. There is currently no reason to believe that INS will change its practice this time around.
7By contrast, regular cases taken on earlier will likely have been filed by then, since regular cases take a lot less time to prepare.
About The Author Sam Udani has written articles on labor certification for several law journals, and has lectured on labor certification to many bar associations across the country. He has assisted hundreds of attorneys in labor certification matters. He is a member of the ILW.COM team. If you find this article useful in your labor certification practice, he invites you to show your appreciation by signing up as an ILW.COM member: http://www.ilw.com/membership
Sam Udani has written articles on labor certification for several law journals, and has lectured on labor certification to many bar associations across the country. He has assisted hundreds of attorneys in labor certification matters. He is a member of the ILW.COM team. If you find this article useful in your labor certification practice, he invites you to show your appreciation by signing up as an ILW.COM member: http://www.ilw.com/membership