November 20, 2003 - The Department of Labor (DOL) issued its long-waited guidance today on RIR labor certifications pending at the regional DOL offices in a memorandum for regional certifying officers. The guidance directs the certifying officers to conduct an initial review of all pending RIR applications for "completeness/compliance." If the application is found to meet the completeness/compliance requirements, the memorandum directs that:

(a) if the position requires a "Bachelor's Degree and three (3) or more years of experience or a Master's Degree (+) six (6) months of experience," the application should be certified, OR

(b) if "the level of recruitment and the detail provided in the recruitment report" satisfy the certifying officer that further recruitment is unnecessary, then the application should be certified.
In other words, applications for positions with higher level requirements and applications that contained detailed reports of recruiting results (for U.S. workers), regardless of the positions' requirements, will be certified (approved).

Many if not most RIR applications filed in recent years contained only summary recruitment results, and thus would not qualify for certification immediately unless the position's requirements met the "Bachelors and three years or Masters and six months" standard. For all other applications, the certifying officers are directed to offer employers the following options:

(a) Withdraw the application totally.

(b) Have the case remanded to the State Workforce Agency (SWA) for recruiting at a later date under "traditional" agency-supervised processing.

(c) Conduct a one-day advertisement "retest" of the labor market with a detailed report of the disposition of all applicants.

In satisfaction of the retest option, the guidance directs the certifying officers to accept current recruitment performed within the past six (6) months. Employers will be permitted to modify the applications by including different job requirements or additional duties. This permission to modify the requirements is in response to many employers' complaints that they were strongly encouraged to use only the most common or streamlined requirements in RIR applications that were filed during the tight labor market of years past.

Labor certification is the first stage of the employment-based green card (immigrant) process. Recruitment is required to test the labor market in order to demonstrate that there are not sufficient qualified U.S. workers available, willing and able for positions with specific requirements. RIR labor certification was promoted nationally beginning in 1996 to streamline the process, and permitted employers to conduct their own recruitment and report results in advance of filing the application. During the height of the tight labor market, employers were encouraged to file RIR applications with only summary reports of recruitment results, since the unavailability of sufficient qualified U.S. workers was widely recognized.

The memorandum makes no mention of a remedy for applications that were remanded to the SWA but that would benefit from the new guidance. Whether the regional DOL offices will recall remanded applications or wait for motions to reconsider to be filed is not yet clear and will be a primary question in many regions; Berry, Appleman & Leiden will continue to pursue a beneficial outcome.

Berry Appleman & Leiden is also working with employers to make individual case assessments and plans so that they can promptly take advantage of the benefits of the guidance