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,
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?
conversion request must contain:
1. Letter requesting conversion
2. Documentation of recruitment within past 6 months of
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.).
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
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.
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,
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
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
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.
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
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
Can an RIR
case that has been determined deficient and remanded to
SESA for conventional advertising be re-converted to
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
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.