Since the U.S. Department of Labor (“DOL”) introduced General Administration Letter (“GAL”) 1-97, the only viable way to apply for an Alien Labor Certification is through the Reduction in Recruitment (“RIR”) method. Prior to GAL 1-97, the DOL had been under much criticism due to extreme delays in the processing of traditional labor certification applications, with applicants having to wait five years or more to obtain approvals. The RIR method is considerably faster, with approvals arriving just a few months after filing in many cases. While the RIR era has brought improvements in the DOL’s efficiency, it requires active communication between Attorneys who truly understand how the process works and employers to achieve results in individual cases.
Most people seeking to obtain permanent resident status in the United States through an employer’s Immigrant Visa Petition (I-140) must first obtain a “labor certification” from the DOL. The labor certification process is designed to establish that there are no qualified, willing and available U.S. workers in the area of intended employment.
Up until a few years ago, this process took approximately two years, with the State Employment Security Agency (“EDD” in California) supervising the recruitment process, and the DOL issuing final decisions on applications. The processing time has suffered increasing delays at both the DOL and EDD, such that it appears recently filed “supervised recruitment” cases could take more than five years!
In 1997, the DOL introduced a modified process called Reduction In Recruitment, (“RIR”) through which the employer conducts an independent recruitment campaign prior to filing. The RIR strategy, if successful, substantially decreases the processing time for labor certification cases. The process is a double-edged sword, however, and if the case is not successful, the case is referred to the back of the line of “supervised cases.”
Despite the relative straightforwardness of the RIR process, some Attorneys leave their clients in the dark as to what efforts they are undertaking and what course will be taken to complete a successful RIR application. Perhaps this is due to the Attorney’s inability to learn a new way of doing things and insistence on hiding behind an aura of mystique in the absence of legal talent. Regardless, any applicant paying substantial attorneys fees is entitled to an explanation of how the process works and where he stands in the spectrum of probabilities for success before and while the application is pending.
In general, the RIR process was designed to allow employers seeking to hire foreign workers to engage in “real world” recruitment to show that no US workers are “qualified, willing and available” to take the job. This means that the employer must include with the filing evidence that he has advertised the position in a newspaper, posted the job offer at the job site and engaged in other recruitment efforts such as Internet postings for a six-month period. The Attorney must actively supervise the recruitment campaign, from the drafting of the advertisements themselves to compiling the results of the job interviews.
In order to accurately advertise the position, the Attorney has to communicate with the employer to fully understand the job duties and what qualifications the employer would expect of a successful applicant. If the employer has engaged in recruitment before deciding to petition the alien through RIR, the Attorney must review the recruitment efforts and results and be able to advise the employer as to whether further recruitment is necessary.
The Attorney should advise the employer if certain requirements will be deemed restrictive and thus hurt the chances of success, while encouraging the employer to include requirements that are necessary to the job and will enhance the chances for success. The Attorney should advise the employer on how many advertisements should be placed, based upon the employer’s explanation of industry standards as communicated to the Attorney.
In all, the employer should understand exactly why things are being done and not settle for vague explanations, which in reality indicate nothing more than the Attorney’s lack of understanding of how the RIR process works. Far too much is at stake for the employer, the alien worker and his family to rely on less than bona fide professional assistance.