DOL Issues RIR Guidance in Light of Layoffs
Posted Apr 05, 2002

The U.S. Department of Labor (DOL) issued guidance to its Regional Certifying Officers (COs) on March 20, 2002 regarding evaluation of Reduction in Recruitment (RIR) requests made as part of the Labor Certification process. Dale M. Ziegler, Chief of the Division of Foreign Labor Certification, issued the guidelines setting forth the procedures and criteria for evaluating RIR requests when there have been layoffs in the occupation in the area of intended employment. In this economy, as many of us are painfully aware, layoffs in the technology sector are quite common. These layoffs could create problems; particularly for those companies that intend to pursue labor certifications after there have been mass layoffs within the company or the industry.

As many MurthyBulletin and MurthyDotCom readers are aware, RIR is available for known shortage occupations. RIR is a method for processing applications for labor certification whereby the employer advertises the availability of the position prior to filing the labor certification. This method is faster than the "regular" process. It also enables the employer to test the labor market before filing the application. In contrast, "regular" cases involve advertising and recruitment under the close supervision of the state labor agency, in accordance with specific instructions. In either process, the state forwards the file to DOL, which determines whether RIR is appropriate in each particular case. If an RIR request is denied, the case will proceed under the "regular" process, and will be returned to the local department of labor, or what is now called the State Workforce Agency (SWA), for additional advertising as directed.

RIR or Regular

As the purpose of advertising is to determine whether there are available U.S. workers for the position, the issue of layoffs is an important one. In order to determine whether a case should proceed via RIR, the guidance allows for COs to consider the following information that indicates the availability of U.S. workers in a particular occupation.

The CO can consider recent cases that have undergone the "Regular" process for occupations similar to the description in the labor certification under consideration. S/He can ask if a market test for similar occupations produced qualified workers. The COs can contact state agencies (unemployment agencies, job banks, information units) to obtain general labor market information. S/He can also review articles within the last six months concerning the availability of workers in the particular field.

If the CO is confident that qualified U.S. workers may be available for the position, the RIR is to be denied and the case proceeds under the Regular process.

Pattern of Recruitment

On a favorable note, the Memorandum directs the COs that the shift in the economy should not change the existing policy regarding the required "pattern of recruitment" the employer must establish in order for the case to qualify as RIR. Specifically, if RIR is appropriate for a particular area, then the employer must have one print advertisement in a newspaper of general circulation or a relevant journal, plus enough additional recruitment methods to establish a pattern that adequately tests the labor market. These additional activities may include: job order with the state workforce agency, internal company recruitment, Internet ads, job fairs, use of employment agencies and/or additional print ads. The recruitment methods should be those that are normal to the particular industry.

Layoffs in the Particular Company

If the CO has reason to believe that the petitioning employer may have laid off workers after completion of the recruitment effort and within six months of the CO's review of the file, the CO will issue a letter to the employer asking for the names of any workers laid off in the same occupation as stated in the labor certification. If there are any such workers, the company will have to show that these workers were given consideration for the position at issue.

Failure to provide this information or to respond adequately will result in a Notice of Findings, which will indicate an intention to deny the case. If this issue is not adequately addressed, the case will be denied.

Layoffs in the Industry or Occupation

If the CO has reason to believe that, subsequent to the employer's advertisement/s, other employers have laid off workers in the same type of position, then the CO must give the employer the option of publishing one additional advertisement or requesting that the case be remanded to the state for "regular" processing.

If there are both layoffs by the particular employer and in the industry / occupation overall in the local area, then the CO must obtain information on the availability of U.S. workers, using both of the procedures discussed above.

These procedures are to be implemented immediately. Ultimately, as we can expect from the DOL Memo and the current economy, it will be more difficult to obtain approval of labor certifications in general and, in particular, by means of the RIR method.

On a positive note, there are many regional variations, and some industries and fields have been less affected by layoffs and downturns than others. The Law Office of Sheela Murthy continues to receive RIR approvals in many regions. Provided that the employer can demonstrate that the layoffs do not pertain to the particular job classification, are not the in the region where the job is being offered, are not for positions of a different level, nor can otherwise differentiate the case, it is possible to obtain approvals even if there have been layoffs in a particular company.