DOL Attempts to Address Routine RIR Denials
Posted Aug 22, 2003

At The Law Office of Sheela Murthy and MurthyDotCom, we are often asked whether labor certifications (LCs) filed using the pre-advertisement procedure, known as Reduction in Recruitment (RIR), are still being approved. RIRs are preferred since they generally are processed faster than regular LC cases under the traditional method. In RIR cases, the employer is primarily responsible for monitoring the recruitment, while in the traditional or regular LC cases, the U.S. Department of Labor (DOL), acting through the local offices, monitors the entire process, causing delays in processing. This article addresses particular problems encountered throughout the U.S. and efforts to address those problems, particularly with RIR cases filed in Department of Labor Region VI. Region VI of the DOL encompasses California, Arizona, Nevada, Washington, Oregon, Idaho, Alaska, and Hawaii.

Background – Ziegler Memos

We reported on DOL RIR guidance on layoffs in our MurthyBulletin articles, DOL Issues RIR Guidance in Light of Layoffs, of April 5, 2002 and Department of Labor Update: May 2002 of June 07, 2002, both available on MurthyDotCom. In those articles, we described two guidance Memos issued by DOL to its Regional Certifying Officers (COs), describing how COs should evaluate RIR requests. Dale M. Ziegler, then Chief of the Division of Foreign Labor Certification at DOL, issued these guidance Memos. The Memos set forth guidelines and criteria for evaluating RIR requests in instances where there have been layoffs in the occupation or in the geographic area of intended employment. As many of us are aware, some sectors of the country have unfortunately suffered significant layoffs in certain industries and occupations. Layoffs can create problems for the processing of LC applications, particularly for those employers that intend to pursue LCs after there have been mass layoffs (a) within the general geographic region or (b) within the employer's own workforce or (c) within the particular occupation in that geographic area.

Consider the Economy

The Ziegler Memoranda were intended to balance the DOL procedure of evaluating RIR requests based upon market conditions at the time the application was filed, with evidence of current layoffs in the company or industry. The Memoranda provide that, should the petitioning employer experience worker layoffs either six months before filing the RIR application or six months before the CO’s review of the case, the CO must send a Notice of Findings (NOF) to the employer. Through that Notice of Findings, the CO would attempt to ascertain whether any qualified, U.S. workers were laid off during either of the six-month timeframes. The employer would be asked to supply the names of these workers. If there are any such workers, the company would be asked to show that those workers were given consideration for the position at issue. The Ziegler Memos also provide that if the CO has reason to believe that, subsequent to the employer’s advertisement/s, employers in the local area had laid off qualified U.S. workers (even if the employer requesting the LC has never laid off any employee), then the CO would have to give the employer the option of either publishing one additional advertisement, as generally required under the RIR process, or requesting that the case be remanded to the state for “regular” processing.

Regions Routinely Denying RIRs

As with many issues, the problem is in the implementation of the Ziegler Memos. Rather than following the procedures set forth in those Memos, some COs have been routinely denying RIRs and sending the cases to be processed as regular LC cases. This does not mean the cases are denied. Rather, they are referred to the local State Workforce Agency (SWA) for advertising under the supervision and direction of the SWA as regular LC cases instead of enjoying the expedited treatment and processing under the RIR format. When a case is processing as a regular LC case, then the SWA places the case in the "regular" queue and directs that all resumes be sent to the SWA directly, rather than be left to the discretion of the employer to determine candidate qualification. The processing for regular LC cases normally takes several years longer than RIR cases. Alternatively, the SWA could direct additional advertisement immediately, meaning there would be less of a delay. In either event, the employer is not given the opportunity to use the procedures set forth in the Ziegler Memos to support the request for RIR processing. Nowhere has this been more evident than in DOL Region VI. In this region, many of the RIR cases are summarily returned to the SWAs as RIR waiver denials to be processed with traditional recruitment as regular LC cases.

New Chief Travels to California to Resolve Issues

On July 16, 2003, Bill Carlson, the new Chief of Foreign Labor Certification, and Harry Sheinfeld, the Solicitor to the Employment Training Administration of the U.S. Department of Labor, traveled to California for a firsthand look at the situation and to evaluate the various interests involved in Region VI. The trip included a meeting with a group of American Immigration Lawyers Association members. The meeting resulted in the gathering of information on what was actually happening with LC and RIR applications and brainstorming on various approaches to avoid increasing SWA backlogs and delays under traditional recruitment methods.

We are pleased to report that Mr. Carlson and Mr. Sheinfeld expressed their goal of causing the least harm to employers who had relied on RIR processing guidelines in good faith at the time they filed their applications, while protecting U.S. workers and reviewing backlog reduction plans. As a result of their visit, Region VI has halted all automatic denials of RIR cases and remands to the local SWAs for regular processing, while DOL undertakes a policy review. The Law Office of Sheela Murthy will continue to monitor the situation and update our MurthyBulletin and MurthyDotCom readers on any new developments.