GAL Letter on RIR Conversion

U. S. Department of Labor
Employment and Training Administration
Washington, D.C. 20210 CLASSIFICATION
Foreign Labor Certification

CORRESPONDENCE SYMBOL
OWS/DFLC

DATE
November 13, 2001

DIRECTIVE: GENERAL ADMINISTRATION LETTER NO. 2-02

TO: ALL STATE WORKFORCE AGENCIES

FROM: EMILY STOVER DeROCCO
Assistant Secretary

SUBJECT: Foreign Labor Certification: Reduction-in-Recruitment Conversion "Q's&A's"

1. Purpose. To transmit to states a copy of the Final Rule that amended the Department of Labor's (Department's) regulations governing the permanent labor certification program (Attachment A); and Reduction-in-Recruitment (RIR) Conversion Q's&A's (Attachment B), which provide policy and procedural guidance clarifying the intent of the Final Rule.

2. References. 20 CFR part 656; Technical Assistance Guide (TAG) No. 656, Labor Certifications; and General Administration Letter (GAL) No. 1-97, Change 1, "Measures for Increasing Efficiency in the Permanent Labor Certification Process" (May 11, 1999).

3. Background. On August 3, 2001, the Department published in the Federal Register a Final Rule amending the regulations governing the permanent labor certification program. This Final Rule was crafted to help reduce the large backlog of permanent labor certification applications in State Workforce Agency (SWA) processing queues. Specifically, the rule permits employers to request, in certain circumstances, that any labor certification application for permanent employment in the United States that is filed on or before August 3, 2001, the publication date of the rule in the Federal Register, be subject to RIR processing. Pursuant to GAL 1-97, Change 1, requests for RIR processing are given expedited handling at both the state and federal levels. The RIR provision allows Regional Certifying Officers to reduce partially or completely the employer's recruitment efforts through the SWAs, for example, by decreasing the number of days that the job order and/or print advertisements must be run. The Employment and Training Administration (ETA) anticipates that the amendment will reduce the backlog of labor certification applications in SWAs. Moreover, it is hoped that this measure will result in a variety of other desirable benefits, such as a reduction in processing time for both new applications and those currently in the queue, and will facilitate the development and implementation of a new, more efficient, system for processing labor certification applications that ETA is currently developing.

4. Action Required. State administrators are requested to:

A. Provide this guidance to appropriate staff.

B. Instruct staff to follow these policies and procedures in handling employer requests to convert labor certification applications filed under the basic process to RIR processing.

C. Apply these procedures in handling employer requests for RIR conversions received on or after September 4, 2001, the effective date of the Final Rule.

5. Inquiries. Inquiries regarding this GAL should be addressed to your Regional Certifying Officer.

6. Attachments.

A. Final Rule published in the Federal Register on August 3, 2001, "Labor Certification Process for the Permanent Employment of Aliens in the United States; Refiling of Applications."

B. Reduction-in-Recruitment Conversion Q's&A's

Attachment B to GAL No.

Reduction-in-Recruitment Conversion Q's&A's

1. Is there a date by which an employer's labor certification application must have been filed in order to be eligible for a Reduction-in-Recruitment (RIR) conversion? Is there an end date by which such requests must be submitted?

(A) The regulation provides that any application filed on or before August 3, 2001, the date the regulation was published, is eligible for an RIR conversion, provided the state has not yet commenced the recruitment process by placing a job order into the regular Employment Service system pursuant to
§ 656.21(f)(1). There is no stated termination date for RIR conversion requests, but there is a "natural" end date: when the state places a job order on the last of the applications received by the state on or before August 3, 2001. Obviously, when this will occur will vary from state to state.

2. What is the "supporting documentation" for a request for conversion to RIR processing?

(A) The supporting documentation required for a conversion to RIR processing is the same as that required for an application initially filed under the RIR process, as well as a written request for conversion.

3. What if an employer submits a request for an RIR conversion on an application filed after August 3, 2001, or after the job order has been placed pursuant to § 656.21(f)(1)? What if an employer submits a request for an RIR conversion but does not include with the request the required recruitment documentation?

(A) If an employer submits a request for an RIR conversion that is untimely, whether because the application was filed after August 3, 2001, or because the conversion request was received after the placement of the job order, the state should inform the employer that the RIR conversion will ultimately be denied by the Regional Office and offer the employer an opportunity to withdraw the conversion request. While the ultimate authority for determinations on RIR conversion requests rests with the Regional Certifying Officer, states are encouraged to inform the employer of such obvious deficiencies, especially those that are incurable. Similarly, with respect to requests for conversion to RIR processing that do not include the required recruitment documentation, the state should inform the employer that the lack of such documentation will ultimately result in the denial of the request for conversion by the Regional Office. The employer will be informed that they must either submit the required documentation or withdraw the request for conversion. Should the employer refuse to withdraw conversion requests that are untimely, or refuse to submit the required recruitment documentation, the application should be forwarded to the Regional Office where the RIR conversion request will be denied by the Regional Certifying Officer.

4. What if the employer wants to make changes to the Form ETA 750?

(A) Changes to the original Form ETA 750 will not be accepted if they collectively constitute a new job opportunity being requested or the labor market area requested changes. A change which results in the wage offered being less than 95% of the prevailing wage at the time of recruitment will lead to denial of the RIR request. A change in the beneficiary will not affect the Department's processing of an RIR conversion request. Questions regarding whether or not the substituted beneficiary will be grand fathered under Section 245(i) of the Immigration and Nationalization Act (INA) should be directed to the Immigration and Naturalization Service.

5. What if an employer requests that the state hold off on placing the job order until the employer has had adequate time to conduct its RIR recruitment activities, and/or to gather evidence that will support a future RIR conversion request?

(A) States are not required to provide this option to employers. However, a state may offer this option if it determines that this practice will be beneficial to the state and to the majority of employers filing labor certification applications because of efficiencies introduced as a result.

6. If an application is converted to RIR processing, does the employer lose its filing or "priority date" for the application?

(A) No, an application that is converted to RIR processing in compliance with the regulations retains the priority date of the original application filed under the basic process.

7. What if an employer requests an RIR conversion on an application involving a Schedule B occupation?

(A) Existing regulations at § 656.21(i) preclude the use of the RIR process for Schedule B occupations. The occupations on Schedule B are defined in the regulations at § 656.11. If the job opportunity being requested is in an occupation that is found in that section, then the job requested is on Schedule B and is not eligible for RIR processing.

8. What if an application is converted to RIR processing in response to an employer request, is forwarded to the Regional Office for a determination, and the RIR request is subsequently denied due to deficiencies such as an inadequate recruitment effort?

(A) The converted RIR application is returned to the state, where it is placed in the "regular" queue according to the priority date of the original application filed under the basic process, the same place it was previously situated prior to the RIR conversion. This is in contrast to the procedure to be followed when a traditional RIR request is denied by the Regional Office. Pursuant to GAL 1-97, Change 1, when a traditional RIR request is denied the application is placed in the regular queue according to the date the application is received by the state after being returned by the Regional Office. It is then treated as a regular application received on that date but it retains the original priority date.

9. What if an application was initially filed under the RIR process but the RIR request was denied by the Regional Certifying Officer and the application was returned to the SESA and placed in the regular queue? Can such cases be converted back to RIR processing?

(A) Yes, as long as the initial filing of the application occurred on or before August 3, 2001. If an application was initially filed under the RIR process, but the request was denied by the Regional Certifying Officer, the application would then be returned to the SESA and placed in the regular queue. At that point, the employer retains the right to request a conversion to RIR processing as long as the initial filing occurred on or before August 3, 2001. Of course, if the reason for rejecting the original RIR request is not curable, such as a belief by the Regional Certifying Officer that there is a widespread availability of qualified U.S. workers in the occupation and area, any subsequent conversion will merely result in a second denial of the RIR request on the application.

10. For states that were heavily impacted by the temporary reinstatement of Section 245(i) of the INA, what if the application has not yet been entered into the system used to track cases? How are states to handle requests for RIR conversions with respect to such cases?

(A) The answer to this question will depend upon the circumstances that exist in the individual state, the state's technological capabilities, and the state's willingness to set up potentially elaborate tracking systems in order to couple RIR conversion requests with the applications at the time they are entered into the state's automated system. States confronting this situation should adopt an approach that makes the most administrative sense in light of the circumstances that exist in that state.

11. GAL 1-97, Change 1, requires that RIR applications be given expedited processing by both SWAs and Regional Offices. What percentage of time should be devoted to processing RIR cases as opposed to regular permanent cases?

(A) There is no hard and fast rule on this, but if the state devotes the time to processing RIR applications in the same percentage that they are represented in the total queue of permanent applications, this should result in minimally adequate expediting of these applications, since each RIR application should be able to be processed more quickly than an application filed under the basic process that requires supervised recruitment. (E.g., if 50% of the applications in the queue are RIR applications, it will be expected that the state will spend at least 50% of their time processing RIR applications.)

12. In order to establish a "pattern of recruitment," which date is used as the reference point - the date the original application was received or the date the RIR conversion request is received?

(A) The point of reference for the pattern of recruitment is based upon the date the RIR conversion request is received. In other words, the earliest acceptable published advertisement or other recruitment activity must have occurred within the six months prior to the date the RIR conversion request is received by the state. Earlier advertisements or other recruitment activities will not be considered by the Regional Certifying Officer in determining whether a pattern of unsuccessful recruitment has been established.

13. If the employer requests to withdraw a regular application filed under the basic process and submit an RIR application in its place, can the employer retain the original priority date?

(A) No. If an application is withdrawn, any "replacement case" carries the priority date of the date the new application is received by the state.

14. How should an employer request a conversion to RIR processing?

(A) The specifics of the request may vary slightly from state to state because of the specific operational needs of each state. However, such a request must consist of a letter requesting conversion to RIR processing and documentation supporting that a pattern of recruitment has been established within the six months preceding the date the conversion request is received by the state, and that any U.S. workers were rejected solely for lawful, job-related, reasons. For most states, it will be extremely helpful if a copy of the original Form ETA 750 is included with an indication of the date it was submitted.

The conversion request will be coupled with the case file and placed in the RIR queue based on the date the conversion request was received by the state.