Converting a Conventional Labor Certification Application to "RIR"

On August 3, 2001, the Department of Labor, Employment and Training Administration, issued the long-awaited final rule for conversion of the conventional labor certification application to "Reduction in Recruitment" (RIR). See 66 Fed. Reg. 150 at 40584 - 40590 (August 3, 2001). Six pages of preamble precede the one paragraph addition to the regulation found at 20 CFR 656.21. 

The AILA Department of Labor Liaison Committee is working with the Employment and Training Administration (ETA) to flesh out and fine-tune the requirements and procedures for RIR conversion. This practice advisory, which has been submitted to DOL ETA for review, provides AILA practitioners with suggested methods to successfully convert a labor certification application to the more advantageous RIR format.

When can I start filing RIR cases?

Now. The rule is effective on September 4, 2001. Presumably, you can file a conversion request on that date, not before. We have heard, however, that some SESAs received RIR conversion requests prior to September 4th. To save SESA resources, those cases were not returned as prematurely filed, but were held in abeyance and either mingled with the requests received on September 4, 2001 or placed behind those cases received on September 4, 2001. 

Are all pending conventional cases eligible for RIR conversion?

No. Only those cases that were filed with the SESA on or before August 3, 2001 (the date of publication of the amendment to the regulation) and have not been assigned a Job Order will be eligible for conversion. Once SESA assigns a Job Order for a case filed on or before August 3, 2001, it is no longer considered eligible for RIR conversion.

Also, remember that pursuant to regulation Reduction in Recruitment is not available for Schedule B occupations.

How do I make the request for RIR conversion?

The request must be made in writing. 

What must be included with the request?

The RIR conversion request must contain:

1. Letter requesting conversion
2. Documentation of recruitment within past 6 months of conversion request
3. Notice of opening (e.g., posting)
4. Recruitment summary
5. G-28, if not previously filed
6. Amendments to ETA, if needed, as required by SESA (new forms, letter, or request to amend, see discussion below on amending the ETA 750)
7. Proof of filing of conventional labor certification application prior to August 3, 2001 (SESA acknowledgment letter, mailing slip, etc.).

Are cases that need amendment eligible for RIR conversion?

Yes. But beware: The preamble to the regulation suggests that major changes to the ETA-750 might change the job opportunity, therefore requiring a new filing and disqualifying the case from RIR conversion. As stated: amendments to "the duties and requirements of the job offer . . . [to the] extent that it become a new job opportunity" would require a new filing. While we are unclear exactly what DOL means by creating a new job opportunity, at a minimum it would be safest to avoid any amendments to the job duties or requirements that may cause a change in DOT or OES classification.

How do I amend a case for which RIR conversion is requested?

DOL contemplates that "amendments can be handled in the same fashion as they are currently handled." SESAs utilize various procedures for amending a case; the nature of the amendment might affect the method of amendment. In some instances, a letter to SESA is sufficient. Other times, the employer is allowed to submit a new ETA form, signed and dated, for association with the pending case. And finally, sometimes, the employer (for part A) or employee (for part B) can amend the form by making the changes directly to the form and initialing and dating the changes. In the third scenario, you would need to ask SESA to return the ETA forms to you. 

When you notify SESA in writing that your client intends to convert the case to RIR, you should also notify SESA that your client desires to amend the ETA 750. If you are familiar with the SESA's amendment procedures, you might include with your filing whatever is required to amend the application. If you are not familiar with those procedures, we suggest that you simply indicate in your letter requesting RIR conversion the employer's desire to amend the ETA and clearly ask SESA to instruct you as to what action needs to be taken to make the amendment.

Is past recruitment sufficient, or must the recruitment have been conducted after the regulation was published?

The recruitment (newspaper and journal advertising, college campus recruitment, job fairs, web postings, internal posting, etc.) must have occurred within six months of the RIR request. Thus, recruitment can date as far back as March 4, 2001, if the RIR request is filed on the first possible day permitted -- September 4, 2001. 

Where do I file the request?

The request must be filed with the SESA.

Where do I make the request if the case has been sent to the Region for some determination prior to assignment of a Job Order?

The request still must be made to the SESA, which can then notify the Region. To facilitate quicker processing, however, you should contact the Region as well. (see below)

Is a case pending at DOL eligible for RIR conversion?

Yes, as long as a job order has not been assigned. These cases might require some amendment to comply with the issues under consideration (see discussion below). If an amendment is needed, submit concurrently to SESA the RIR request, RIR documentation, and the request to amend or the amended ETA-750. 

There are various scenarios whereby a case might be pending at DOL and no Job Order has ever been assigned. They are: 1) restrictive requirements; 2) deficient wage offer; or 3) inadequate recruitment

For the first two scenarios, submit the RIR conversion documents to SESA, along with a letter advising SESA that the case is currently pending at DOL. If amendment can be made by way of letter or a new form, those should be submitted with the RIR request letter and RIR documentation. If the SESA amendment procedure is for employer to initial and date changes to the form, once SESA gets the file back from the Region, SESA should return the ETA to the employer for amendment consistent with the RIR documentation, which already has been submitted. For the third scenario, if the pattern of recruitment was viewed as inadequate, submit additional evidence of recruitment under the RIR conversion guidelines along with the RIR conversion request, with a letter explaining that the case is currently pending at the Region due to inadequate recruitment. 

Under any of these scenarios, as appropriate to the circumstances, SESA should then either forward the recruitment documents and amendments to the Region, or request return of the file as necessary, consolidate all documents, and return the file to the Region for a final determination.

Can an RIR case that has been determined deficient and remanded to SESA for conventional advertising be re-converted to RIR? 

Yes. Since the case would now be considered a conventional case filed before August 3, 2001, you can convert the case to RIR by following the same procedures outlined in the regulation.

Can I request that SESA place a pending case "on hold" to allow the employer to engaged in recruitment to RIR conversion?

This is not clear. The issue is under discussion with DOL ETA. Lobbyists believe that, as long as the SESA has not initiated a job order, the SESA should be open to notification by the attorney that a request for RIR conversion is forthcoming and should have procedures whereby a case may be put on hold at least for a short period to allow the RIR conversion request to be filed. Otherwise, the SESA would be wasting time and resources and ultimately defeating the purpose of the amendment to the regulation. Although there is no official word on this particular issue, if your client intends to file an RIR conversion request in the near future, you might try to notify your SESA in advance, particularly if you believe that the SESA will place a job order before your RIR conversion request is submitted.