DOL Update on RIR Processing Guidelines
Posted Nov 28, 2003

The U.S. Department of Labor (DOL) issued a Memo on November 20, 2003, on a change in policy with respect to Reductions in Recruitment (RIRs). In this Memo, Mr. Carlson directs regional DOL Certifying Officers on how to handle labor certification RIR processing in light of the changing economy. This Memo, issued by William L. Carlson, Chief of the Division of Foreign Labor Certification, follows earlier memos on the same topic issued by Mr. Carlson's predecessor, Dale Zeigler. The Zeigler procedures were analyzed in MurthyBulletin articles, DOL Issues RIR Guidance in Light of Layoffs (April 5, 2002), and Department of Labor Update: May 2002 (June 7, 2002), available on MurthyDotCom. One of the reasons cited for the new guidelines is the expectation of the implementation of the PERM program, which will entirely alter the labor certification process. For articles about PERM and its implementation, see our PERM Page on MurthyDotCom. The DOL separately stated on November 21, 2003 that final PERM regulations will not be published until sometime in early 2004, and that the new procedures will not be implemented until 120 days (about 4 months) after its publication.

The Carlson Memo sets forth procedures pertaining to the recruitment efforts necessary to test the job market, as needed for a labor certification approval, in light of the current state of the U.S. economy. The problem, essentially, is that the job market is tested before filing in RIR cases, with a showing that there are no available workers at that time. Given the backlogs in labor certification processing, however, the economy may have changed significantly since the original filing of the RIR case. The Zeigler memos from 2002 require additional recruitment if circumstances during the six months prior to the review of a labor certification application indicate that there are U.S. workers available for the position.

The November 20, 2003 Carlson Memo appears to place restrictions on the DOL's ability to require such additional recruitment. The stated purpose of the Carlson Memo is to address the problem of backlogged RIR cases in the information technology field in several of the DOL's Regional Offices. The Memo recognizes that it is undesirable to send the cases that would normally be remanded to the State Workforce Agencies (SWAs) back to the SWAs, because this would cause additional delays of two years or more. To address this, the Memo provides four Standard Operating Procedures (SOPs) for the Regional Offices to use in addressing the problem.

Initial Review SOP

The first procedure is an initial review. At this stage, a Certifying Officer may deny the RIR if the labor certification is not complete. For example, an incomplete labor certification may fail to include an explanation of an employer's recent layoffs. Under the Memo, such labor certifications will receive a Notice of Findings (NOFs) and the employer will be given the standard thirty-five day opportunity to rebut the findings of the Certifying Officer.

Additional Recruitment May or May Not be Required

The remaining applications will be divided into two categories. One category is applications where the minimum stated experience and education required is at least a bachelor's degree and three additional years of experience or a master's degree and six additional months of experience. If the education and experience requirements for such applications meet these criteria and proper recruitment was performed prior to filing, the Memo directs them to be certified without retesting. In other words, the Certifying Officers are not to look at current labor market conditions when certifying these cases. These cases will only be reviewed for the adequacy of the recruitment performed prior to filing the RIR case.

The second category is for labor certifications in which the minimum requirements for the position are below a bachelor's degree and three additional years of experience or a master's degree and six additional months of experience. The Certifying Officer must review the application to determine whether the recruitment report has sufficient detail and demonstrates that recruitment was adequate. If sufficient, the labor certification will be certified. Because cases that fall into the second category are subject to the retesting provisions, it would appear that the Certifying Officer is permitted to look into current market conditions in making the determination as to whether retesting is required or whether to simply certify the case.

Retest SOP

If an application cannot be certified after initial review, the Certifying Officer is directed to send a letter to the employer and/or the employer's attorney setting forth three choices of action: withdraw the RIR request; have the case remanded to the SWA for traditional recruitment; or conduct a one-day retest of the labor market. If the latter option is selected, the employer must report the results of the one-day retest to the Certifying Officer within 60 days of receipt of the letter. If retesting is selected, and the retest information is not received by the DOL within 67 days of the date of the letter, the Certifying Officer will consider the case abandoned. The report to the Certifying Officer on the market retest must specifically identify all applicants who sought employment and the disposition of each application. Further, the DOL is encouraging, though not requiring, employers to include the applicants' resumes.

Look Back SOP

If additional recruitment is required for an RIR application, the Memo provides that any testing of the market that occurred within the prior six months will be deemed sufficient, provided the employer has a copy of the advertisement and a detailed report of the disposition of each application for the position. The Certifying Officer may review the resumes that were submitted for the position. This is a favorable change, as prior to this Memo only advertisements placed within the last 60 days would be considered.

Application Modification SOP

Modifications of the labor certification at the retest stage are permitted if the modifications do not change the occupational classification of the job. The modifications must meet all normal applicable DOL rules regarding job requirements. This may be a critical factor for employers that, during the previous strong economy, had been instructed by the DOL to reduce their minimum job requirements to avoid having these perceived as too restrictive. Now employers will have a limited opportunity to have the minimum requirements for the position more accurately reflect the true minimum requirements for the position, thus limiting the number of potentially qualified applicants.

Conclusion

The November 20, 2003 Carlson Memo contains some significant and potentially beneficial changes for labor certification applications filed using the RIR procedure. We think the new SOPs may help speed the resolution of some long-delayed RIR cases. It will also avoid the rather unfair situation that occurs regularly, where a labor certification case is advertised and filed at a time when the economy was good and then is reviewed, sometimes several years later, at a time when the economy is struggling.