DOL Proposes Positive Changes to Labor Certification Process
Posted Dec 27, 1999

Representatives of the Department of Labor (DOL), in a meeting with AILA liaison members on November 17, 1999, indicated that the DOL was drafting a proposal to enable "regular" labor certification applications to be converted to "reduction in recruitment" (RIR) cases, without loss of the priority date.

The Law Office of Sheela Murthy, P.C. has been discussing the issue for the last several years with the U.S. Department of Labor for them to seriously consider transferring the priority date from a regular Labor certification case to an RIR case. I personally brought up the issue with Harry Sheinfeld, the General Counsel of the U.S. Department of Labor over 3 years ago. At that time, Mr. Sheinfeld agreed with me that it is reasonable and practical but an earlier priority date from a regular case cannot be transferred to a RIR case and the foreign national would have to withdraw the prior filed labor certification case to file a new RIR case. While the transfer of dates may not matter to most foreign nationals, for nationals of China and India, where there is a risk that the priority dates may regress again in the near future, this potential benefit could mean a lot.

Apparently, the new method would allow employers who have conducted recruitment after submission of the labor certification application to supplement the original application with documentation of the recent recruitment efforts.

DOL expects to publish the proposed regulation in December 1999. After publication, there is a comment period and at some time after that the final regulations are expected to be issued. Unfortunately, only on the effective date of the final regulations, would the new procedure become available. But it is long-awaited, good news!

In its report on this proposal, AILA commented that the solution proposed by DOL should be particularly helpful in regions where there are large backlogs of "regular" cases. As stated above, the ability to preserve the priority date is great news for people from countries which tend to have a waiting list in employment based categories, as well as for people who are out of status and need to preserve "grandfathering" rights.

We hope that DOL's proposal to consider converting regular labor certification cases to RIR is part of a trend at DOL to improve efficiency and clear backlogs. The DOL has proposed another new development which would have a dramatic effect on processing times, known as PERM. Employers would submit an "attestation" showing the specific steps taken to recruit U.S. workers. The vast majority of cases (about 85%) would go through extremely quickly. Cases considered questionable would be subject to audits, and may have to go through additional recruitment efforts similar to the traditional labor certification process. Proposed regulations for the PERM process are expected by March 2000.

The Law Office of Sheela Murthy, P.C. applauds these efforts. We believe that these new and long-awaited improvements will make life easier for everyone involved: immigrants, employers, and DOL personnel!