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Cite as “Posted on AILA
InfoNet, Doc. No. 01090632 (November 15, 2003 ).”
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Frequently Asked Questions
Converting a conventional labor certification application to RIR
by Linda Rose, member of the DOL-ETA Liaison Committee
On August 3, 2001, the Department of Labor, Employment and Training Administration, issued
the long-awaited final rule for conversion of the conventional labor certification
application to "Reduction in Recruitment" (RIR). See 66 Fed. Reg.
150 at 40584 - 40590 (August 3, 2001). Six pages of preamble precede the one
paragraph addition to the regulation found at 20 CFR § 656.21.
The AILA Department of Labor Liaison Committee is working with the Employment and Training
Administration (ETA) to flesh out and fine-tune the requirements and procedures for
RIR conversion. This practice advisory, which has been submitted to DOL ETA for review,
provides AILA practitioners with suggested methods to successfully convert a labor
certification application to the more advantageous RIR format.
When can I start filing RIR cases?
Now. The rule is effective on September 4, 2001. Presumably, you can file a conversion
request on that date, not before. We have heard, however, that some SESAs received RIR
conversion requests prior to September 4th. To save SESA resources, those cases were not
returned as prematurely filed, but were held in abeyance and either mingled with the
requests received on September 4, 2001 or placed behind those cases received on September
4, 2001.
Are all pending conventional cases eligible for RIR conversion?
No. Only those cases that were filed with the SESA on or before August 3, 2001 (the
date of publication of the amendment to the regulation) and have not been assigned a
Job Order will be eligible for conversion. Once SESA assigns a Job Order for a case filed
on or before August 3, 2001, it is no longer considered eligible for RIR conversion.
Also, remember that pursuant to regulation Reduction in Recruitment is not available for
Schedule B occupations.
How do I make the request for RIR conversion?
The request must be made in writing.
What must be included with the request?
The RIR conversion request must contain:
1. Letter requesting conversion
2. Documentation of recruitment within past 6 months of conversion request
3. Notice of opening (e.g., posting)
4. Recruitment summary
5. G-28, if not previously filed
6. Amendments to ETA, if needed, as required by SESA (new forms, letter, or request to
amend, see discussion below on amending the ETA 750)
7. Proof of filing of conventional labor certification application prior to August 3, 2001
(SESA acknowledgment letter, mailing slip, etc.).
Are cases that need amendment eligible for RIR conversion?
Yes. But beware: The preamble to the regulation suggests that major changes to the ETA-750
might change the job opportunity, therefore requiring a new filing and disqualifying the
case from RIR conversion. As stated: amendments to "the duties and requirements of
the job offer . . . [to the] extent that it become a new job opportunity"
would require a new filing. While we are unclear exactly what DOL means by creating a new
job opportunity, at a minimum it would be safest to avoid any amendments to the job duties
or requirements that may cause a change in DOT or OES classification.
How do I amend a case for which RIR conversion is requested?
DOL contemplates that "amendments can be handled in the same fashion as they are
currently handled." SESAs utilize various procedures for amending a case; the
nature of the amendment might affect the method of amendment. In some instances, a letter
to SESA is sufficient. Other times, the employer is allowed to submit a new ETA form,
signed and dated, for association with the pending case. And finally, sometimes, the
employer (for part A) or employee (for part B) can amend the form by making
the changes directly to the form and initialing and dating the changes. In the third
scenario, you would need to ask SESA to return the ETA forms to you.
When you notify SESA in writing that your client intends to convert the case to RIR, you
should also notify SESA that your client desires to amend the ETA 750. If you are familiar
with the SESA's amendment procedures, you might include with your filing whatever is
required to amend the application. If you are not familiar with those procedures, we
suggest that you simply indicate in your letter requesting RIR conversion the employer's
desire to amend the ETA and clearly ask SESA to instruct you as to what action needs to be
taken to make the amendment.
Is past recruitment sufficient, or must the recruitment have been conducted after
the regulation was published?
The recruitment (newspaper and journal advertising, college campus recruitment, job
fairs, web postings, internal posting, etc.) must have occurred within six months of
the RIR request. Thus, recruitment can date as far back as March 4, 2001, if the RIR
request is filed on the first possible day permitted -- September 4, 2001.
Where do I file the request?
The request must be filed with the SESA.
Where do I make the request if the case has been sent to the Region for some
determination prior to assignment of a Job Order?
The request still must be made to the SESA, which can then notify the Region. To
facilitate quicker processing, however, you should contact the Region as well. (see
below)
Is a case pending at DOL eligible for RIR conversion?
Yes, as long as a job order has not been assigned. These cases might require some
amendment to comply with the issues under consideration (see discussion below). If
an amendment is needed, submit concurrently to SESA the RIR request, RIR documentation,
and the request to amend or the amended ETA-750.
There are various scenarios whereby a case might be pending at DOL and no Job Order has
ever been assigned. They are: 1) restrictive requirements; 2) deficient
wage offer; or 3) inadequate recruitment.
For the first two scenarios, submit the RIR conversion documents to SESA, along with a
letter advising SESA that the case is currently pending at DOL. If amendment can be made
by way of letter or a new form, those should be submitted with the RIR request letter and
RIR documentation. If the SESA amendment procedure is for employer to initial and date
changes to the form, once SESA gets the file back from the Region, SESA should return the
ETA to the employer for amendment consistent with the RIR documentation, which already has
been submitted. For the third scenario, if the pattern of recruitment was viewed as
inadequate, submit additional evidence of recruitment under the RIR conversion guidelines
along with the RIR conversion request, with a letter explaining that the case is currently
pending at the Region due to inadequate recruitment.
Under any of these scenarios, as appropriate to the circumstances, SESA should then either
forward the recruitment documents and amendments to the Region, or request return of the
file as necessary, consolidate all documents, and return the file to the Region for a
final determination.
Can an RIR case that has been determined deficient and remanded to SESA for
conventional advertising be re-converted to RIR?
Yes. Since the case would now be considered a conventional case filed before August 3,
2001, you can convert the case to RIR by following the same procedures outlined in the
regulation.
Can I request that SESA place a pending case "on hold" to allow the
employer to engaged in recruitment to RIR conversion?
This is not clear. The issue is under discussion with DOL ETA. AILA believes that, as long
as the SESA has not initiated a job order, the SESA should be open to notification by the
attorney that a request for RIR conversion is forthcoming and should have procedures
whereby a case may be put on hold at least for a short period to allow the RIR conversion
request to be filed. Otherwise, the SESA would be wasting time and resources and
ultimately defeating the purpose of the amendment to the regulation. Although there is no
official word on this particular issue, if your client intends to file an RIR conversion
request in the near future, you might try to notify your SESA in advance, particularly if
you believe that the SESA will place a job order before your RIR conversion request is
submitted.
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