Last week, the U.S. Department of Labor (DOL) issued a new Rule announcing procedures by which any and all pending labor certification (LC) applications targeted for "supervised recruitment" can be "converted" to "Reduction in Recruitment" (RIR) processing.  Those familiar with the labor certification system before the PERM system know that RIR adjudication is a faster and more streamlined method of labor certification processing than DOL's traditional supervised recruitment procedures.

Under the pre-PERM scheme, employers could file labor certification applications either under the RIR scheme or under the supervised recruitment (non-RIR) process. When filing an LC application under the supervised track, the employer simply submitted its application and waited for the DOL (or the state agency) to issue recruitment instructions. Many employers filed such applications right before PERM came into effect in order to create a "place holder" labor certification in the event that PERM was not a good alternative. Other employers were unable to conduct recruitment and filed non-RIR type cases. Still other employers had applications involuntarily switched from the RIR pipeline to the non-RIR pipeline, and those cases remain pending and awaiting recruitment instructions. After creating the PERM system to handle LC applications filed after March 28, 2005, the DOL created two "backlog elimination centers" to deal with the backlogged cases.

Conversion of a non-RIR LC application to RIR handling should lead to faster adjudication for employers who can take advantage of it.  In order to convert a pending application otherwise marked for supervised recruitment, an employer must conduct a period of recruitment for the position during the six month period prior to filing the RIR conversion request.  The rules for RIR recruitment are more flexible than those for PERM, and there is no requirement that Sunday newspaper ads or a State Workforce Agency (SWA) job order be used.  Employers may be able to use documentation of recruitment they have already done to support the RIR request.  The employer must also obtain a SWA prevailing wage determination, in order to establish that the salary listed on the LC application meets the prevailing wage.  The employer may amend the wage on the LC to meet the current prevailing wage determination. Please note that if an employer has experienced a RIF within the 6 months preceding the filing of the RIR conversion, the RIR conversion may not be viable.

Until last week's announcement, DOL previously limited RIR conversions only to LCs that were filed prior to August 4, 2001.  This new rule allows any LC filed on or before March 28, 2005 to be converted to RIR processing, provided that DOL has not begun the supervised recruitment process for that case.  RIR conversion requests will not be accepted for any case after DOL issues supervised recruitment instructions for that case.  DOL has advised that it will not hold off on issuing supervised recruitment instructions for LCs, so employers who wish to convert to RIR processing must act quickly to take advantage of this option..

RIR conversion allows the employer to upgrade their pending supervised LC to RIR processing at DOL, rather than replace the supervised case at DOL with a new PERM application.  Conversion to RIR allows the employer to retain the priority date from the original LC application. The priority date is the date the application was initially filed with the SWA.  While DOL does have an option to transfer the priority date of a pending LC to a new PERM filing, the PERM conversion process has proven extremely difficult in practice, and if DOL finds that the PERM application is not "identical" to the original LC application, DOL will deny the conversion and the original priority date will be lost.  If DOL denies an RIR conversion request, the original priority date is not lost, and the case will continue processing under supervised recruitment.

Retention of an early priority date may be critical for persons who may be subject to priority date retrogression, such as individuals born in India, China or the Philippines. The State Department's Visa Bulletin continues to list backlogs in the employment-based third preference (EB3) category for all individuals worldwide, and for backlogs in the employment-based second preference (EB2) category for those born in India and China.   Please see our web page on quota movement and the Visa Bulletin for more details.

The priority date determines whether an individual is eligible to proceed to the final stage of the green card process, either via adjustment of status or consular processing. For this reason, RIR conversion would allow all eligible pending supervised recruitment LCs to be upgraded to RIR, with no risk of losing the priority date.  Employers interested in taking advantage of the new RIR conversion rule should contact their attorney at Jackson & Hertogs to discuss this option.  Jackson & Hertogs is also contacting clients whom we believe may benefit by use of RIR conversion.

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