Employers Provided Conversion Option in some Pre-PERM Cases
Posted May 25, 2007
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The Board of Alien Labor Certification Appeals (BALCA) issued a decision on May 21, 2007 that impacts pre-PERM labor certifications filed under the Reduction in Recruitment (RIR) procedure. BALCA considered whether the Certifying Officer (CO), who first grants a reduction in recruitment request, may then deny the RIR application if s/he finds that the application failed to document adequate consideration of U.S. workers or if there was unlawful rejection of U.S. workers. BALCA decided that the U.S. Department of Labor's CO cannot deny the RIR case outright in this situation.
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DOL Must Provide Option of Traditional Recruitment
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In this case, BALCA decided that the CO must first refer the application for supervised or "traditional" recruitment (TR), because the employer should not be penalized if s/he submitted an insufficient RIR package. Instead, the CO has the option to deny the RIR request and refer the application for traditional recruitment with instructions if there are special sources of recruitment, such as laid-off workers. This is true even when the reason for RIR denial is the rejection of a qualified U.S. worker, rather than just a finding that the recruitment effort itself was inadequate.
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Result - One Could Retain Earlier Priority Date
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If an employer filed an RIR labor certification under the old, pre-PERM system, which is only now being adjudicated, there is a risk that the certification will be denied if there are flaws in the request for RIR. Under this new BALCA case, however, the Certifying Officer cannot deny the RIR labor certification, but has to refer it for the traditional recruitment. Because of that, more people will have a chance to keep their original priority dates, so that they potentially are able to obtain their "green cards" sooner.
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Conclusion
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Most RIR cases have already made their way through the system, as the Backlog Processing Centers have cleared out over 80 percent of their cases, as of an update the Murthy Law Firm received in mid-May 2007. Many of the cases that are still pending are non-RIR cases, but some do remain; and there may be others on appeal that would benefit from this decision.