DOL Updates on PERM and RIR : November 4, 2002
Posted Nov 22, 2002

Officials of the U.S. Department of Labor (DOL), Employment and Training Administration (ETA) met on November 4, 2002 with the American Immigration Lawyers Association's (AILA's) DOL ETA Liaison Committee at DOL's headquarters in Washington, DC. ETA is the agency within DOL that is responsible for immigration-related matters including Labor Certifications (LCs) and H1B Labor Condition Applications (LCAs). The MurthyBulletin regularly reports on highlights of such meetings between various government agencies and representatives of AILA - all available on MurthyDotCom.

PERM Update

In the November 4, 2002 liaison meeting, AILA asked for an update on the status of the PERM regulations. Past MurthyBulletin articles have described the proposed PERM program, which would completely overhaul the Labor Certification process for employment-based immigration. Those earlier articles include Proposed Regulations on PERM, published May 13, 2002, and Concerns with DOL's PERM Regulations, from July 12, 2002.

The DOL issued the proposed PERM regulations in May 2002. Thereafter, in accordance with standard procedure, there was a period for the public to submit comments regarding the regulations. Due to the significance of the PERM regulations, DOL received many comments from the public. The next step is for DOL to review and consider the comments, and then issue a final regulation.

DOL indicated that the comments are being analyzed with the help of a contractor. Covering about ten major issues, each of the comments is being considered in detail. This is a slow and painstaking process. DOL was unable to offer an estimated time for issuance of the final regulation.

RIR Conversion

In August 2001, DOL issued a regulation allowing pending Labor Certifications to be converted from the slower "regular" processing to the more streamlined Reduction in Recruitment (RIR) process. The priority date is preserved in the converted cases. However, the ability to "convert" is limited to LCs filed before August 3, 2001, the date that the regulation was published.

The AILA Liaison Committee asked whether DOL ETA would consider abolishing the cut-off date, allowing instead for conversion of LCs filed at any time. The impetus behind this question was the recent change in the law allowing H1B extensions beyond six years when an LC is pending for one year. This change has and will continue to lead to many LCs filed under the "regular" process, in efforts to file one year prior to the expiration of an employee's six-year limitation. In order to file before the deadline the cases often must be done quickly. This does not allow enough time to pre-advertise the position, as is required for an RIR case.

Regular LC filings have also become more common lately, due to changes in the labor market. Many cases are filed via the regular method because the employer is unable to show a present shortage of qualified workers. These cases may later be good candidates for RIR conversion, if and when the economy improves. Since the regular labor certification process can take several years, changes in the economy are likely during the time that these cases are pending.

DOL ETA officials were open to considering this request, but were not of the opinion that there was much likelihood the conversion cut-off date would be removed. The AILA committee also encouraged DOL ETA to actively look for more ways to reduce backlogs and speed case processing. For more information on RIR conversion, kindly refer to these MurthyBulletin articles, available on MurthyDotCom: DOL Issues Long Awaited RIR Conversion Regulations, from August 10, 2001, and Labor Certification Conversion Further Clarified, March 22, 2002.