DOL Updates Guidance on Conversion to RIR - December 2006
Posted Jan 05, 2007
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The U.S. Department of Labor (DOL) has provided guidance related to the procedure to convert traditional labor certification cases (TR) to Reduction in Recruitment (RIR) cases. This guidance, issued on December 22, 2006, involves cases pending with the Backlog Processing Centers (BPCs) only. It does not in any way impact PERM labor certifications. The guidance is in the form of a response to a Frequently Asked Question (FAQ). This DOL answer presented a new concept referred to as "hold harmless" for employers considering conversion, to avoid the possibility of an employer starting the conversion process only to discover that the DOL has issued advertising instructions and created a job order. The employer must notify the DOL by January 20, 2007 and send all the information for the RIR package by April 1, 2007. If the employer exercises the "hold harmless" option, but fails to meet the April 1, 2007 deadline for submission of the RIR package, the case will be closed.
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Background to Convert Regular LC Cases to RIR Cases
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On October 6, 2006, the DOL extended the option of converting labor certifications pending at the BPC from TR to RIR. This matter was reported in our October 13, 2006 MurthyBulletin article, RIR Conversion Possible for Most Labor Certifications at BPCs, available on MurthyDotCom. The potential benefit of converting a regular LC case to RIR is that it puts the case in a faster queue for processing. One problem with the procedure is that it cannot be accomplished if the DOL issues recruitment instructions and creates a job order (JO) prior to the RIR conversion filing. In such a situation, the case remains as a regular LC case, regardless of the prior recruitment efforts. The DOL announced that it would address this concern and provide a method for placing such a case on hold to allow the employer to engage in recruitment efforts. This was covered in our December 15, 2006 MurthyBulletin article, DOL Facilitates RIR Conversion of Regular LC Cases, also available on MurthyDotCom. The set of FAQs published on December 22, 2006 is the DOL's answer to this problem.
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Hold Harmless Concept
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The DOL response to the FAQ presents a new concept referred to as "hold harmless" for employers considering conversion. Once activated, "hold harmless" allows an employer to convert a case from TR to RIR by advertising and posting in the RIR method without concern that the DOL will create a JO before the conversion process is complete.
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Employer Deadlines and Potential Case Closure
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To activate the "hold harmless" option, the employer or a company representative, must send an eMail to a designated eMail address stating that it is electing to convert the case from regular LC to RIR. With this commitment, the employer is also agreeing to meet 100 percent of the prevailing wage (as determined by the DOL) and confirming that the RIR package will be sent to the DOL no later than April 1, 2007. The FAQ further states that the employer is agreeing to allow the case to be closed if the deadline is not met. All of these concepts must be incorporated into the eMail to the DOL. The DOL has supplied text to be completed and submitted by the employer or company representative. The eMail must be sent on or before January 20, 2007. Once the eMail is sent, the employer no longer has the option to proceed through the regular LC track.
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Procedure after Election of Conversion
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The transmission of the eMail by the employer or company representative triggers the "hold harmless" procedure. Once the DOL has received the request, they will respond via eMail with a prevailing wage determination. The employer will then proceed with the preparation of the RIR package. The RIR package must be mailed to the DOL no later than April 1, 2007, or the case will be closed. Once the DOL has received the conversion request, they will make a determination to either issue a labor certification (approve the case) or reject the RIR and have it revert to the regular TR queue.
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When Can the Employer Take Advantage of Conversion?
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The FAQ also indicates that, if an employer has a pending regular TR case that meets ALL of the following criteria, the employer can convert the TR case to RIR.

1. The case has not already received a final disposition.

2. A Notice of Findings (NOF) has not been issued for the application, or a NOF has been issued but successfully rebutted at the time of sending the eMail request.

3. The application is not for a Schedule B occupation (unskilled worker requiring little or no experience).

4. The employer / attorney / agent has not received a Recruitment Report Instructions letter from the BPC indicating that supervised recruitment has ended and providing instructions for the results.

Which Jobs or Positions May Succeed in RIR Conversion?
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The DOL defines job opportunities appropriate for RIR conversion as any position that has an SOC code falling into the following.

1. "in-(high)-demand" occupations, as listed on O*NET (browse by job family)

2. "high-growth industries" as identified by the Employment and Training Administration (ETA)

3. any position/s identified by a State Workforce Agency (SWA) as in-demand or shortage occupation/s (Note that each state has an SWA, so it may be possible that a job is in-demand or considered a shortage occupation in one state, but not another.)

In addition, the employer may bring other source documents to demonstrate the shortage of qualified U.S. workers for the position that would justify the conversion to RIR. If the employer is convinced that other sources can be produced to present a convincing argument that the offered position is "high growth" or "in (high) demand," it may be best to convert the case even if the offered position does not meet the above criteria. One should consult with an experienced, qualified immigration attorney prior to any decision to convert.
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Conclusion
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The Murthy Law Firm applauds the efforts of the DOL to answer the concerns of the stakeholders and to streamline the process to complete all labor certification cases pending at the BPCs before the deadline of October 1, 2007. This alternative offered by the DOL may prove beneficial to some employers, but it is always important to be cautious and understand the risks by first discussing the options and strategies with a knowledgeable immigration lawyer.