DOL Promulgates Conversion Regulation to Expedite Labor Certification Applications
On August 6, 2001, the Department of Labor (DOL) published a final rule allowing employers with pending "traditional" labor certification applications to convert them into "fast-track" reduction in recruitment (RIR) applications while preserving the earlier filing date. The rule would permit applications filed on or before August 3, 2001, to now be processed as an RIR request.
The rule amends 20 CFR Section 656.21 by adding a new paragraph (i)(6) to read as follows:
"Notwithstanding the provisions of paragraph (i)(1)(i) of this section, an employer may file a request with the SESA to have any application filed on or before August 3, 2001, processed as a reduction in recruitment request under this paragraph (i), provided that recruitment efforts have not been commenced pursuant to paragraph 656.21(f)(1) of this section."According to the DOL's preamble to this rule, an employer may request to process an application as an RIR by submitting evidence of good faith recruitment conducted within the six months immediately preceding the date of the request.
The final rule provides that an employer may request an RIR conversion up until the point that the State Employment Security Agency (SESA) has placed a job order. Therefore, a request for conversion can be made at any point before the placement of a job order, and can be done even if the SESA has notified the employer about needed changes prior to the placement of the job order.
There are also a few cases that are presently in regional office queues for which no recruitment has occurred. According to the preamble, if the certifying officer of a DOL regional office remands such applications to SESA for further processing, an employer may request RIR processing provided that the application was initially filed prior to August 3, 2001.
The preamble cautions that a request for conversion must be made at the SESA and not directly with the regional DOL office.
The DOL also recognizes that since traditional applications may be pending for many years, minor changes may be made to the job description and wage when making the request for conversion. However, if the duties and requirements of the job offer are changed to such an extent that it becomes a new job opportunity, the application would need to be refiled with the SESA as a new application with a new priority date.
The preamble further notes that no specific application, nor any specific occupation, is inherently deserving of favorable treatment under an RIR request. Similarly, no application or occupation is inherently ineligible under RIR processing procedures, unless the application for an occupation is listed on Schedule B.
It remains to be seen how this conversion process will actually work. Many SESAs have been swamped with thousands of applications that were filed prior to April 30, 2001 deadline under Section 245(i). These applications have yet to be entered into the system. It would be difficult for a SESA office to acknowledge a conversion request when the original application has still not been inputted into the system. Furthermore, cases that continue under the traditional-track will get further delayed as most of the resources will be expended towards processing cases already filed as RIRs or RIR conversion cases.
About The Author
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is Vice Chair of the American Immigration Lawyers Association's National Labor Department Liaison Committee, trustee of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-686-1581 or email@example.com.