Department of Labor Extends RIR Conversion Deadline

The Department of Labor announced on October 6, 2006 that it was extending the deadline for converting alien employment certifications (or "labor certifications") filed under the traditional process to the more streamlined the “Reduction-in-Recruitment” (RIR) process. This deadline was initially set at August 3, 2001. Prior to last week’s announcement, only applications filed prior to this date would be eligible for conversion. This deadline has now been extended to March 28, 2005, which is the last day that RIR or traditional applications could have been filed. All applications filed after this date must be filed pursuant to the new PERM procedure.

For most foreign workers, alien employment certification is the first step in obtaining permanent residence status in the United States. Under traditional processing, employers are required to test the labor market for available, qualified U.S. workers under the supervision of the Department of Labor after the labor certification application is filed. Under RIR, testing the labor market is conducted in a more streamlined fashion with the recruitment being done prior to filing the application without the supervision of the Department.

The reason that the Department has extended the RIR conversion date is to reduce the backlog of applications filed prior to the effective date of the PERM program. Because RIR applications are easier and less time consuming than traditional cases to adjudicate, the Department hopes that encouraging employers to convert to RIR will help the Department meet its promise to completely eliminate the backlog of alien employment certification cases by September 30, 2007.

Analysis:  Extending the conversion deadline seems to be a misguided step in the Department of Labor's efforts to eliminate the backlog of traditional alien employment certification applications. It is unclear why the Department has not simply made the process of re-filing traditional and RIR applications under the new PERM program simpler and more efficient. Doing so would go much further to reducing the backlog, as PERM applications are adjudicated primarily by a computer and are therefore handled much more quickly and efficiently. Currently, PERM re-filing requires that the earlier RIR or traditional application be withdrawn, and that the new PERM application be filed for an “identical” job opportunity. Requiring that the re-filed application be identical to the withdrawn application makes little sense when considering that minor changes to a RIR or traditional application that is not re-refiled does not affect the validity of the application. Because re-filed cases require an examiner to determine whether the job is in fact “identical,” processing currently takes well over six months, despite the fact that the application is supposedly adjudicated by a computer. The new PERM application form also asks questions about the job that are different from those asked on the application used for traditional and RIR applications, so it is usually problematic, and sometimes impossible to re-file "identical" applications.  For these reasons, attorneys have been dissuaded from using the re-filing procedure for most cases, and the huge backlog of traditional and RIR applications has persisted.

Please also note that if the Department of Labor does in fact keep its promise to eliminate the RIR and traditional backlog by September 30, 2007, switching from traditional to RIR will at most save only a few months in processing time, and could end up costing the employer several thousands more in advertising costs and legal fees.  Whether converting to RIR makes sense in a given situation will depend on the specific facts of that situation.  Please contact our office should you have a question regarding a specific case.

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