As explained in our December 2006 Immigration Advisory, the U.S. Department of Labor (DOL) is permitting employers with pending Labor Certification Applications (the most common first step for a foreign national to obtain permanent residency in the U.S.) filed through the Traditional Recruitment (TR) method to convert their pending cases to a faster process known as Reduction in Recruitment (RiR). DOL is encouraging employers to make such conversions, so as to eliminate the tens of thousands of pending Labor Certification Applications at their Backlog Elimination Centers (BECs).
To make the conversion process easier and less risky for employers, DOL has just announced a new "hold harmless" policy whereby, upon notification to DOL that an employer intends to convert a Labor Certification Application from TR to RiR, the employer will be given a safe harbor window in which they can safely conduct the conversion recruitment despite TR instructions being issued by the DOL.
From now until January 20, 2007, employers (or their attorneys) may notify DOL that they intend to convert a pending TR Labor Certification Application to RiR processing. Upon notification to DOL of their intention, the employer will have until April 1, 2007 to conduct recruitment and submit their results to DOL. Contained in the employer’s email confirming their intention to convert a pending case must be any amendments to the information contained on the originally filed Labor Certification Application. Employers must remember that if they notify DOL that they intend to convert a pending case but do not submit the required report before April 1, 2007, the pending Labor Certification Application will be closed (that is, denied).
Not all positions are eligible for RiR Conversions. The DOL-designated occupational category (outlined on the application’s original prevailing wage determination) must be an "in-demand" occupation and/or be part of a "high-growth" industry. These determinations are made by DOL directly, though an employer can submit additional evidence that a particular occupation fits into this category should DOL not have designated it as such initially.
Some considerations to be made as to whether conversion is right for a specific case are outlined in our Immigration Advisory of December 7, 2006. Should an employer decide not to convert to RiR at this time, they still maintain the right to do so at a later date—however the concerns explained in the Immigration Advisory regarding the impact of recruitment instructions being issued on a TR case will still hold. Each case’s individual merits should always be discussed with your immigration counsel.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
