Department of Labor Q&A re: Conversion Requests for Foreign Labor Certification Applications

The Department of Labor (DOL) has issued a General Administration Letter providing guidance to State Workforce Agencies for Reduction in Recruitment (RIR) Conversion requests. On August 3, 2001, the DOL published the Final Rule affecting the permanent labor certification program in the Federal Register. Specifically, the rule allows employers to request, in certain cases, that their labor certification application for permanent employment in the U.S. be converted to RIR processing. RIR cases are processed on an expedited basis both at the state and federal levels. The entire text of the letter is available in PDF format for your review.

The amendment is anticipated to reduce the backlog of labor certification applications at the State level and reduce processing times for both new applications and those currently in the queue.

To be eligible for the conversion, the application must meet the following criteria:

1. The application was filed with the State agency on or before August 3, 2001;
2. The State agency has not yet initiated recruitment by placing a job order (some states may accept requests from employers to hold off on placing the job order until the employer has gathered the required evidence and documents to file a conversion request);
3. Written request for conversion is submitted to the State Agency; and
4. The Request is accompanied by documentation of good faith recruitment.

Other issues discussed involving the conversion requests included the following:

• Amending the Form ETA 750: Changes on the form will not be accepted if they collectively constitute a new job opportunity.
• Deficiencies in the Conversion Request: The State agency will send a request for additional items to correct deficiencies or to withdraw the conversion request.
• Date of Processing & Priority Dates: While the original priority date will be kept, the case file will be placed in the RIR queue based on the date the conversion request was received by the State agency.
• Subsequent Denial of RIR by the Regional Certifying Officer: If the RIR conversion request is denied due to deficiencies, the converted RIR application is returned to the state and placed in the "regular" traditional queue according to the priority date of the original filing date of the application.
• Cases Initially Filed as RIR and Remanded to State for Traditional Processing: If the application was originally filed as an RIR on or before August 3, 2001 and the Regional Certifying Officer denied the RIR request and returned the application to the State Agency for regular processing, the employer can request a conversion to RIR processing (second RIR request for same application). However, if the deficiencies leading to the denial of the first RIR request can not be cured, the second RIR request is likely to be denied.
• Pattern of Recruitment: The recruitment activity must have occurred within six months prior to the date the RIR conversion request is received by the state.

Depending on processing times in the state where your application was filed, it may be to your company’s benefit to file conversion requests to shorten the processing time of applications filed on behalf of foreign nationals. However, in light of current economic trends, it is also crucial that all possibilities and options are thoroughly analyzed prior to initiating recruitment for a conversion request.

To discuss your company’s options or if you have specific questions regarding eligibility for conversion requests, please contact Greenberg Traurig’s Business Immigration Group.