Extension of RIR conversion eligibility for labor certification

Accessible letter PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2006/TEGL07-06_508.pdf

CLASSIFICATION
        U.S. DEPARTMENT OF LABOR                             Foreign Labor Certification
     EMPLOYMENT AND TRAINING ADMINISTRATION                  CORRESPONDENCE SYMBOL
               ADVISORY SYSTEM                               OFLC
               Washington, D.C. 20210                        ISSUE DATE
                                                             October 6, 2006

ADVISORY: FOREIGN LABOR CERTIFICATION
          TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 7-06

TO:            OFLC-NATIONAL PROCESSING CENTER DIRECTORS
               OFLC-BACKLOG ELIMINATION CENTER DIRECTORS
               STATE WORKFORCE AGENCY DIRECTORS (PREVAILING
               WAGE)

FROM:          EMILY STOVER DeROCCO /s/
               Assistant Secretary

SUBJECT:       Foreign Labor Certification: Reduction-in-Recruitment (RIR) Conversion;
               Extension of the RIR Eligibility Date, and Amendments to General
               Administration Letter No. 2-02.

1.    Purpose. To extend the eligibility date the Department of Labor (Department) uses for
      determining whether RIR re-application requests are timely.

2.    References. 20 CFR § 656.21 (2001); 69 FR 43716 (July 21, 2004); 66 FR 40584
      (Aug. 3. 2001); General Administration Letter (GAL) No. 07-97; GAL No. 2-02
      Attachment B; and Training and Employment Notice (TEN) No. 12-05.

3.    Background. Under regulations governing the Permanent Labor Certification
      Program in effect prior to March 28, 2005, the Department processed most
      employer applications for permanent certification under a “Traditional
      Recruitment” (TR) standard. Under this process, employers seeking to test their
      local labor markets for available, qualified United States workers were supervised
      in their recruitment activities.

      The TR process often took extensive time to complete and contributed to the
      growing number of backlog cases. Therefore, the Department began to encourage
      employers to utilize the streamlined "Reduction-in-Recruitment" (RIR) process. On
      August 3, 2001, the Department published a final rule at 66 FR 40584 establishing a
      process for converting TR labor certification applications into RIR applications for
      the permanent employment of aliens in the United States. This regulation amended
      20 CFR 656.21(i)(6) and included a provision allowing employers to convert TR
      cases they filed on or before August 3, 2001, to RIR applications, at their option.

The Department has found the RIR application processing time takes significantly
less time than the TR application processing time. The TR processing time delays
the filing process for employers because they may be required to wait for up to nine
months or longer to receive a resolution (denial or certification) of their case.
Accordingly, the Department has encouraged employers to use the RIR process to
expedite the labor certification filing process. Such conversions allow an employer
to complete its recruitment prior to filing a permanent labor certification
application, thus shortening the time potentially required to reach a determination in
any given case.

The Department initiated the RIR process via non-regulatory guidance in General
Administration Letter (GAL) 1-97. Subsequent to the publication of the final RIR
conversion rule in 2001, the Department issued additional, updated guidance to
advise on and encourage use of the process through GAL No. 2-02, which originally
expired on November 30, 2004. Later, the Department extended the expiration date
for GAL No. 2-02 through December 31, 2006 in TEN No. 12-05. Neither of these
later guidance documents extended the original August 3, 2001, deadline for
conversion to RIR procedures in the final rule.

On July 21, 2004, the Department published an Interim Final Rule at 69 FR 43716
(effective August 20, 2004) granting the Employment and Training Administration’s
(ETA) Division of Foreign Labor Certification (now the Office of Foreign Labor
Certification) the discretion to transfer permanent labor certification applications
pending in state workforce agencies and ETA regional offices to centralized Backlog
Elimination Centers (BECs) for processing. ETA opened the BECs in October 2004.
The Department’s goal is to have all backlogged permanent labor certification
applications eliminated by September 30, 2007.

In December 2004, the Department amended 20 CFR Part 656 again through
69 FR 77386 (Dec. 27, 2004). This regulatory amendment had the affect of
removing the RIR conversion date in the current Code of Federal Regulations, but
did not affect the processing of cases filed prior to March 28, 2005. For those
purposes, the previous regulation remains in effect.

To further assist its backlog elimination goal, the Department has determined the
RIR conversion date at section 656.21(i)(6) of the previous regulation should be
extended. Given the extensive backlog of older cases, which remains even with the
implementation of a streamlined labor certification process, the Department has
determined that it would be contrary to the public interest to delay implementation of
this change and to withhold this benefit from applications filed under the regulation
in effect prior to March 28, 2005.

By announcement of this TEGL in the Federal Register, the Department is allowing
employers that filed their applications before the removal of 20 CFR 656.21(i)(6) to
process their applications under the RIR process with the exception of those cases

     that are already being processed under 20 CFR 656.21(f)(1) of the basic labor
     certification process. As a result, GAL No. 2-02 will remain in effect for RIR
     conversion purposes for applications filed on or before March 27, 2005. Further, the
     Department will process RIR conversions using the same process it currently uses in
     the backlog centers.

4.   Action Required. Effective on the date this TEGL is published in the Federal Register,
     Backlog Elimination Center Directors are required to:

       A.     Provide this guidance to appropriate staff.

       B.     Apply these procedures for handling employer requests to convert TR
              applications received by state workforce agencies on or before March 27,
              2005, to RIR applications unless the exception described in paragraph 4(C)
              below applies.

       C.     Exception: These procedures do not apply to any traditional recruitment
              cases that are already being processed under 20 CFR 656.21(f)(1) of the
              basic labor certification process and which recruitment (i.e. a job order) has
              been initiated by the BEC.

5. Inquiries. Inquiries related to the implementation of this guidance should be directed
   to the appropriate Backlog Elimination Center in Philadelphia at (484) 270-1500 or
   Dallas at (214) 237-9111 .

RESCISSIONS: [blank in source]
EXPIRATION DATE: September 30, 2007