As part of the promise for the conversion of standard labor certification applications to Reduction in Recruitment (RIR) requests, the DOL has proposed implementing the rule.
In furtherance of its earlier promise to allow for the “conversion” of standard labor certification applications to Reduction in Recruitment (“RIR”) requests, the DOL has sent a proposed regulation to implement the rule to the assistant Secretary of Labor for signature. One the rule is signed, to will be processed through the Office of Management and Budget (“OMB”) before it will be published in the Federal register and become law. The new rule could benefit thousands of workers whose labor certifications have been mired in delay for several years.
As background, the labor certification application is a prerequisite to the filing of an Immigrant Petition for Alien Worker for most skilled occupations. The DOL has been under fire for delays spanning several years in the processing of labor certification applications through its Office of Alien Labor Certification. Region IX, which currently processes applications for California, has cited understaffing for its delays, which were among the most egregious of the ten regional offices.
With Congress’ elimination of INA Section 245(i) pressure has mounted from the immigrant community to speed up the processing time, as many workers are no longer eligible to adjust status if they have been out of status in excess of six months. An “H-1B” employee could use his entire six years of available status while awaiting results on a labor certification application. The system required reform.
In 1997, the DOL published new rules for the processing of pre-recruitment of RIR labor certification filings, which would be treated on a priority basis. The RIR application, however, is not appropriate for all filings and the new process did little to alleviate the growing backlog of traditional cases.
The new rule should substantially mirror the proposal rendered by the American Immigration Lawyers Association late last year. Employers will be allowed to engage in unsupervised recruitment in cases in which a traditional labor certification is already pending, and submit the RIR results for expedited processing.
The converted case will preserve its initial priority date for visa quota and 245(i) purposes, such that applicants relying on pre-January15, 1998 petitions will still be able to adjust status even if their nonimmigrant status has lapsed. The DOL will publish the new rule as a “proposed regulation,” which allows for the submission of comments by interested parties. AILA will likely tender its commentary, depending on the extent to which the proposed regulation differs from AILA’s original proposal. Comments could delay implementation of the new rule slightly, but such a delay will pale in comparison to the years of time people have suffered through waiting for approval of “standard” labor certification applications.