Cite as “Posted on AILA InfoNet, Doc. No. 01080806 (November 15, 2003 ).”

DOL issues Final RIR Conversion Regulation: Summary

            On Friday, August 3, 2001, the Department of Labor issued its long-awaited final rule allowing pending traditional labor certifications to be converted to RIR cases without loss of the priority date (Fed. Reg., August 3, 2001, Vol. 66, No. 150, Pages 40584-40590). The rule itself is a brief  amendment to  20 CFR Section 656.21, and states that an employer may file a request with a SESA to have any application filed before August 3, 2001, processed as an RIR case, provided that SESA- directed recruitment has not yet begun in the case.

            The final rule reflects several changes requested by AILA after the Department of Labor issued its proposed rule in July of 2000. In its proposed rule, the Department of Labor set July 26, 2000 as the cut-off date for RIR conversion requests. In other words, under the proposed rule, only labor certifications filed prior to July 26, 2000 would have been eligible for RIR conversion. In its comments to the proposed rule, AILA strongly suggested that the cut-off date be the effective date of the final rule, and DOL accepted this suggestion, setting August 3, 2001 as the cut-off date. This means that traditional labor certifications filed before the 245(i) deadline of April 30 may now be converted to RIR cases.

            In addition, the proposed rule would have only allowed RIR conversion for cases not yet sent to a regional office. AILA pointed out that this would have precluded RIR conversion for cases forwarded to a Regional Certifying Office prior to recruitment, for resolution of various issues including prevailing wage. The final rule as written allows RIR conversion for any case for which the SESA has not yet placed a job order. This would encompass cases forwarded to a regional office prior to the initiation of recruitment.

            The DOL  rejected suggestions by AILA and other groups to provided clear guidelines to SESA’s for implementation, stating that the information in the preamble should serve as sufficient guidance. In cases where the ETA does not require amendment, the DOL’s preamble states that a written request to convert a case may be made to a SESA, attaching evidence of good faith recruitment within the six months immediately preceding the date of the request. When a written request for RIR conversion is received by the SESA, the preamble states that the SESA should take the request and the supporting documentation, add it to the case file, remove the application from the regular labor certification application queue and place it in the RIR queue.

            The preamble also confirms that the DOL will allow RIR conversion in cases requiring amendments to the ETA 750, as long as the job opportunity remains essentially the same. With respect to such amendments, the DOL suggests that the SESA’s will be following their own long-established procedures.

            Finally, the preamble contains encouraging language with respect to DOL’s view toward RIR conversions. It states: [G]enerally all requests for conversion to RIR processing will be granted. Only where the occupation listed in the application is on Schedule B, or the request is not timely, would the employer request for conversion to RIR processing be denied.”

            AILA’s DOL-ETA National Liaison Committee is reviewing the regulation and will be issuing a practice advisory within the next few weeks containing practical recommendations for filing RIR conversion requests.