Department of Labor Update : May 2002
Posted Jun 07, 2002

In our commitment to keep MurthyBulletin and MurthyDotCom readers abreast of current policies from the U.S. Department of Labor (DOL), we provide here the highlights of a May 1, 2002 liaison teleconference between the DOL and the American Immigration Lawyers Association (AILA).

Much of the discussion focused on the disparate and, in some cases, erroneous interpretations of the March 20, 2002 memo issued by Dale Ziegler, Chief of the Division of Foreign Labor Certification. This memo addressed the processing of labor certification cases filed under Reduction in Recruitment (RIR) procedures when there have been recent layoffs by the petitioning company or other companies within the region. We reported on this memo in our article, DOL Issues RIR Guidance in Light of Layoffs.

RIR and Layoffs

The problem, in a nutshell, is that many labor certification cases were filed using the RIR process at a time when the economy was good. At that time, DOL strongly encouraged the use of RIR. As regular MurthyBulletin and MurthyDotCom readers are aware, the RIR process enables employers to demonstrate a shortage of workers with the necessary skills in their specific, local areas. Employers provide documentation, including proof of having advertised for positions, resulting in an inability to locate qualified U.S. workers.

DOL delays in processing mean that the cases currently being reviewed were filed many months ago. Now that the economy is no longer booming and many employers are laying off workers, DOL is taking a stricter view of RIR cases. The DOL is trying not to penalize employers for the delays in processing the cases and, at the same time, is trying to protect U.S. workers. DOL explained that they would look at each case to determine whether RIR was appropriate, based on the availability of U.S. workers at the time the case was filed.

If the RIR was appropriate, but subsequently there have been general industry layoffs within the six months preceding the review of the case, the employer will be given the choice as to how to proceed. The choice will be to either place one more advertisements to recruit U.S. workers or to have the case treated as a non-RIR (also known as "regular") case. If treated as a non-RIR case, it is processed in the timeframe of other cases filed around the same time. It does not go to the end of the queue. The non-RIR case will have to undergo additional advertisement efforts under the direction and supervision of the State Workforce Agency or SWA (previously known as a State Employment Security Administration or SESA).

According to DOL, in some areas of the country the economy has been generally deteriorating for quite some time. Therefore, the DOL Certifying Officer may conclude that the RIR request was inappropriate when filed. In such a case, the RIR will be denied and the case processed as a non-RIR case.

Non-RIR and Layoffs

For non-RIR cases, recent industry layoffs and the general economic downturn are not considered in the decision. However, if the particular employer has had layoffs of workers in the six months preceding case review, the DOL can follow special procedures set forth in the March 20^th memo.

Imminent Layoffs

The DOL has stated that they may make inquiry into whether the employer has anticipated future layoffs, but only when there is concrete and reliable evidence that a layoff is imminent. This information must be specific to the region.

Expedite Policy

The DOL is continuing to work on a policy to allow for expedited processing of cases in limited situations, such as when a child will turn 21 years of age and "age out" of eligibility for inclusion in the parent's permanent residency application case. DOL is also considering expediting approvals when needed for filing H1B 7^th-year extensions under AC21, but no firm decision has been made to enable a person to enjoy the 7^th-year H1B extension.