Labor Certification Conversion Further Clarified
Posted Mar 22, 2002
At the end of 2001, the U.S. Department of Labor (DOL) issued a General Administration Letter (GAL) that clarified issues regarding DOL's August 3, 2001 regulations allowing for the conversion of "regular" labor certification cases to the more streamlined "reduction-in-recruitment" (RIR) process. The MurthyBulletin reported on the regulations and explained the significance of the conversion process in our article, DOL Issues Long Awaited RIR Conversion Regulations, available on MurthyDotCom. DOL subsequently issued a set of questions and answers (Qs and As) that sheds additional light on the process.
Deadlines
The Qs and As make it clear that the regulation applies only to those labor certification applications filed on or before August 3, 2001. Those applications are eligible for RIR conversion as long as the state has not placed a job order to initiate the recruitment process. Once that order is placed, conversion is no longer possible.
Documentation
The request for conversion must be in writing and accompanied by the usual supporting documentation submitted with RIR applications. Specifically, this documentation must demonstrate a pattern of recruitment efforts within the six months preceding the RIR conversion request. In addition, the employer must provide the results of these efforts, to establish that no qualified U.S. worker was found and any U.S. applicants for the position were rejected for lawful, job-related reasons. Along with the conversion request, DOL suggests enclosing a copy of the actual labor certification application and proof of the date of initial submission.
Late / Incomplete Requests
Requests filed after the placement of the job order will result in notification that the request is likely to be denied and an opportunity to withdraw the request. Employers who submit incomplete requests will be given the opportunity to provide additional documentation or withdraw the request for conversion. If the employer fails to supplement the record adequately but does not withdraw the case, DOL will deny the conversion request.
Changes to the Labor Certification
Significant changes that alter the nature of the job offer will not be accepted as part of the conversion process. Furthermore, reducing the wage below the required level (95% of the prevailing wage rate) will lead to a denial of the RIR request. Changes in beneficiaries are allowed, however.
Delay
States are not required to wait to begin the job order placement process for purposes of allowing conversion. However, states are allowed to do so if they determine it is more efficient.
Priority Date
Before the conversion process was instituted, the only way to file an RIR case, if one had initially submitted a "regular" case, was to file a new application. The new application would have its own priority date. In contrast, the conversion process preserves the priority date of the initial filing. Retention of the priority date can result as a substantial time saver overall.
Denials
If DOL denies the request for conversion the case can still be proceed as a non-RIR (regular) case. The case will be returned for "regular" processing and be processed in the order of the date of filing. That is, the case does not go to the back of the "regular" waiting line but rather is placed in line according to the date the labor certification application was originally filed.
Cases Filed as RIR Initially
Cases that were initially filed as RIR cases, but denied RIR treatment, can utilize the conversion regulation to get a second chance at RIR if otherwise eligible and if the reason for denial can be overcome.
The conversion process is valuable in that it may serve to greatly speed the processing of particular cases. RIR cases generally have a much shorter processing time than do regular cases. © The Law Office of Sheela Murthy, P.C.
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