On October 6, 2006, the U.S. Department of Labor (DOL) published a notice in the Federal Register, extending the ability to convert pending traditional (TR, or non-Reduction in Recruitment) cases to Reduction in Recruitment (RIR) cases. This ability to convert to RIR has been extended to nearly all the pre-PERM labor certifications pending in the backlog centers. The only labor certifications that cannot be converted are those that already have a job order initiated through the BPC, as part of the supervised recruitment process.

This change was made in an effort to assist the DOL in its goal of having all backlogged labor certifications eliminated by September 30, 2007. RIR, essentially, means that the employer engages in recruitment efforts without specific direction and supervision from DOL. The conversion option applies to traditionally filed cases filed on or before March 28, 2005, which was the effective date of the DOL's PERM regulation, under which all labor certification applications had to be filed according to the new PERM requirements. Additionally, conversion cases must meet all RIR requirements, and only traditional cases for which a 30-day job order has not yet been placed are eligible.

The effective date of the DOL's notice is October 6, 2006, the date of its publication.

Significance of RIR Conversion

By extending the RIR conversion date, DOL is permitting employers who have filed traditional labor certification applications on behalf of foreign employees to switch to RIR processing while maintaining the filing date of the traditional case as the priority date, which designates a place in line for an immigrant visa. In employment-based cases requiring labor certification applications, the priority date is established on the day that the labor certification application is filed with the state employment office. The date is particularly significant for individuals who are subject to cut-off dates for visa processing in the second (EB-2) and third (EB-3) employment based immigrant visa categories.

In addition, in some cases employers may wish to convert traditional cases to RIR processing with an expection toward then re-filing the RIR application as a PERM application. The PERM regulation provides that an employer can re-file a pending application as a PERM case, and maintain the original priority date, only if the applications are identical. In some cases, the RIR conversion process may allow the employer to amend a traditional application in such a way that subsequent re-filing under PERM (where processing is much faster in most cases than processing at a BEC) is possible. We recommend that employers consult their immigration counsel to discuss whether or not it makes sense to convert any particular traditional case to an RIR case.

How to Request that a Case be Converted to RIR Processing

DOL's notice does not include specific instructions for how employers can request RIR conversion. However, DOL will post a new Frequently Asked Questions (FAQ) document to its website with specific procedural instructions. We expect that the procedure will be similar to how RIR conversions were handled in the past by the SWAs. Under the original RIR conversion rule, requests for conversion were to be accompanied by documentary evidence of good faith recruitment conducted within the six months immediately preceding the date of the request. This would include the advertising and other types of recruitment in which employers typically engaged under the RIR process. Typically, RIR recruitment consisted of at least one print ad, along with recruitment at job fairs, on the Internet, and by other means that demonstrated the employer's good faith recruitment.

It is not yet clear whether DOL will permit employers to contact a BEC and request that a case be put on hold while it engages in RIR-compliant recruitment. We are hopeful that the DOL's FAQ will address this matter.