DOL Issues Long Awaited RIR Conversion Regulations
Posted Aug 10, 2001

The Law Office of Sheela Murthy is delighted to share with you an update on the conversion regulations which allow for converting existing regular labor certification or regular LC cases, to the more streamlined "reduction-in-recruitment" (RIR) process, while allowing the employee to retain the original priority date. These regulations were recently published in the Federal Register on August 3, 2001.

We first reported to you in December 1999 that the U.S. Department of Labor (DOL) announced plans for such conversions in our article entitled, DOL Proposes Positive Changes to Labor Certification Process. The ability to convert regular LC cases to RIR is part of an overall effort by DOL to reduce backlogs at the state labor offices known as State Employment Security Agencies (SESAs). In subsequent MurthyBulletin articles, we indicated that the regulations implementing the RIR conversion would be published in the near future, based upon estimates given to us from DOL. We are pleased therefore to at last be able to report that the final regulation was published on August 3, 2001, more than a year and a half later.

Basically the conversion process should work as follows :

An employer who conducts recruitment (advertisements, job fairs, etc.) after a regular LC case is filed, but before the SESA has issued advertising instructions, would be able to submit its recruitment efforts to the SESA as evidence of recent recruiting. This documentation would allow the case to be converted to RIR processing while retaining the original priority date. DOL had estimated that about 85 percent of applications converted to RIR would then be approved on the RIR fast-track processing schedule.

According to the regulations published on August 3, 2001, the employer can submit advertisements for the position and request the case to be converted to RIR if each of the following conditions is met:

(a) the employer filed a permanent LC via the regular method on or before August 3, 2001; and

(b) the case is still at the SESA and the SESA has not yet issued the job order number or advertising instructions.

All the standard rules for RIR that many of you are familiar with, would now apply to the converted cases. This means that a Notice of Posting will have to be filed with the request to convert the case, along with proof of the advertisements within the six months prior to the request for conversion to RIR and a letter explaining the reasons for requesting RIR based on being a shortage occupation, etc.

The conversion process from regular LC to RIR can also be used for cases that were originally filed as RIR but were denied and sent back to the SESA for new advertisements for processing as regular LC cases. This means that an employer can re-advertise the position and request that the case be converted back to RIR as indicated above. It is important to note that if the case is still at the DOL awaiting a decision, it cannot be converted. But once it is remanded (sent back) to the SESA, then the above procedure is a possibility. (Of course, if it is again denied as RIR, then it would have to be processed as a regular LC case. But the conversion regulation at least gives a second bite at the RIR apple!)

In the comments to the regulations issued on August 3, 2001, the DOL has indicated that if changes are needed on the actual LC application form it is still possible to convert the case to RIR, rather than processing it as a new case, as long as the changes are minor and the actual requirements of the position remain unchanged.

We at the Law Office of Sheela Murthy note that this ground-breaking conversion regulation will help many cases to be processed much faster under RIR that have been stuck in the regular queue. However, this opportunity is not without risk. For example, if an employer starts a recruitment process now and then advertisement instructions are issued before the RIR conversion request can be submitted, the entire recruitment effort will be wasted for this case and the employer and the foreign national will have to continue with the regular LC process. If you would like to know how this new procedure might be helpful to your case, you should consult your immigration attorney or you may consult our office on converting the regular case to RIR and attempt to maintain the earlier priority date for such a case.