RIR Conversion Expansion FAQs Posted Oct 13, 2006 ©MurthyDotCom As explained in our MurthyBulletin article entitled, RIR Conversion Possible for Most Labor Certifications at BPCs, available on MurthyDotCom, the U.S. Department of Labor (DOL) has expanded the ability to convert traditional, or TR / non-Reduction in Recruitment, labor certifications to Reduction in Recruitment (RIR) cases. This expansion means that most traditional cases that are pending in the Backlog Processing Centers (BPCs) can be converted to RIR cases. To clarify some questions surrounding this process, the DOL has provided FAQs. These are summarized below. ©MurthyDotCom Question 1. Why would an employer want to convert a TR case to RIR? ©MurthyDotCom Timing. RIR cases generally are processed to receive decisions more quickly, since they do not undergo the same recruitment method. ©MurthyDotCom --- ©MurthyDotCom Question 2. Is there a date or deadline by which the original application had to be filed? ©MurthyDotCom Yes. The applications had to be postmarked on or before March 28, 2005. ©MurthyDotCom Comment : The date of March 28, 2005 appears to be a typographical error in the FAQs. The Federal Register Notice carries the cutoff date of on or before March 27, 2005. The March 27, 2005 date was the last date to file under the pre-PERM system. Anything filed on or after March 28, 2005 would have been under the PERM system. ©MurthyDotCom --- ©MurthyDotCom Question 3. Who may request the conversion? ©MurthyDotCom The conversion must be requested by the employer or by the designated attorney or agent. Foreign national beneficiaries may not make the request. ©MurthyDotCom --- ©MurthyDotCom Question 4. Can Schedule B occupations use these procedures? ©MurthyDotCom No. Under current regulations Schedule B applications cannot use the RIR process. ©MurthyDotCom Comment : Schedule B should not be confused with Schedule A. Schedule A cases are pre-certified as shortage occupations and do not need labor certifications. Schedule B cases, essentially, are the opposite. They are for occupations that the DOL has recognized as generally having sufficient U.S. workers available. Typical Schedule B occupations include: bookkeepers, cashiers, service station attendants, taxi drivers, domestic household workers without a year's paid experience, clerk-typists, sales clerks, and general kitchen workers. ©MurthyDotCom --- ©MurthyDotCom Question 5. Is there a deadline for making the RIR request? ©MurthyDotCom No, but the case is no longer eligible for RIR conversion once the BPC has started the recruitment process. Thus, if an employer waits, the case may end up going through the supervised recruitment under the TR / regular labor process. The BPCs will not delay their start of recruitment to accommodate an employer's request for RIR conversion, which cannot be made before recruitment is begun, but only at the time of submitting the RIR conversion. The request must arrive prior to the start of supervised recruitment. ©MurthyDotCom --- ©MurthyDotCom Question 6. What documents are needed to make the request? ©MurthyDotCom The RIR request must be accompanied by a written request for conversion, contact information regarding the application (including an eMail address), documentation establishing a pattern of recruitment within the six months preceding the date the conversion request is received by the BPC, and proof that any U.S. workers who applied for the job were rejected for lawful, job-related reasons. There must be documentation of the recruitment process used and the results of those efforts. ©MurthyDotCom Comment : Since the RIR request must be accompanied by recruitment efforts and results, it seems that it is entirely possible that an employer could begin the RIR recruitment, only to find out that the BPC started supervised recruitment and eliminated the conversion option before the conversion request could be submitted. It is likely that earlier-filed cases that have been pending with the DOL are at higher risk. ©MurthyDotCom --- ©MurthyDotCom Question 7. How will these cases be processed? ©MurthyDotCom The BPCs will process the requests on a first-come, first-served basis. The response time will depend upon the volume of such requests. The DOL will not be sending confirmation of receipt. ©MurthyDotCom Comment : As there were many who rushed to file without time to engage in recruitment efforts immediately before PERM started, there may be many such requests. We also note that, while the DOL has stated that the labor certifications in the BPCs are processed in a first-in / first-out (FIFO) order, the approvals that we have received have had wide-ranging priority dates with no indication of the FIFO system. ©MurthyDotCom --- ©MurthyDotCom Question 8. What happens if the RIR conversion request is granted? ©MurthyDotCom The employer or attorney will be notified by eMail. The case will be moved from TR processing to RIR processing and then processed based on the initial filing date (priority date). ©MurthyDotCom --- ©MurthyDotCom Question 9. What if the RIR conversion request is not granted? ©MurthyDotCom The case will remain in the TR processing queue. The attorney or employer will be notified by eMail that the request was denied. ©MurthyDotCom --- ©MurthyDotCom Question 10. What if the case was filed using RIR previously, but that request was denied? What if the employer attempted to convert the case to RIR previously, but was not successful? ©MurthyDotCom These cases are still eligible to request RIR conversions. The employer will have to remedy the problems with the previous RIR request/s. ©MurthyDotCom --- ©MurthyDotCom Question 11. In order to establish a "pattern of recruitment," which date is used as the reference point? ©MurthyDotCom The reference point for the pattern of recruitment within six months is based on the date the RIR conversion request is received by the BPC. Thus, any advertisements must have been placed within six months of the request to convert to RIR. Earlier recruitment will not be considered. ©MurthyDotCom --- ©MurthyDotCom Question 12. Can the priority date be lost in trying to convert? Is the application withdrawn? ©MurthyDotCom No. Whether or not the request to convert is accepted, the priority date does not change. The original application is not deemed or otherwise withdrawn. ©MurthyDotCom --- ©MurthyDotCom Question 13. Does the prevailing wage used in the recruitment have to meet the 100 percent level? ©MurthyDotCom Yes. The current regulations require that recruitment be at 100 percent of the prevailing wage. ©MurthyDotCom --- ©MurthyDotCom We at the Murthy Law Firm would like to thank the DOL for these helpful clarifications and the expanded conversion eligibility. There is sure to be much interest in this process. Copyright © 2006, MURTHY LAW FIRM. All Rights Reserved
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