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Monday, November 24, 2003

There have been several critical developments regarding labor certification processing and Special Registration.

On 11/20/03, the Department of Labor (“DOL”) released a memorandum that instructs Regional Certifying Officers how to review Reduction in Recruitment (“RIR”) applications, the circumstances under which a market re-test is appropriate, the types of re-tests available, and the circumstances under which minimum requirements may be modified.

On 11/20/03, William L. Carlson, the DOL’s Chief of Foreign Labor Certification, issued guidance to all Regional Certifying Officers on how pending Reduction in Recruitment (“RIR”) applications should be processed by DOL Regional Offices.

The Regional Offices have substantial RIR backlogs, particularly for applications involving Information Technology (“IT”) occupations. Under normal circumstances, labor market conditions might require that many of these cases be remanded to a State Workforce Agency (“SWA”) for conventional recruitment.

However, in certain regions, like San Francisco, remanding large numbers of cases will create enormous backlogs, creating delays of two or more years in addition to the delays that have already occurred.

The DOL has confirmed that delays of this extent are unwanted under any circumstance, and are simply unacceptable given the imminent implementation of PERM.

According to Mr. Carlson’s memorandum, the following standard operating procedures have been developed to guide the decision-making of Regional Certifying Officers as they review and process RIR applications.

Initial Review Provision:

All RIR applications are to be reviewed based upon existing criteria for completeness of the application, demonstration of a pattern of recruitment, and compliance with applicable regulations such as absence of restrictive requirements, layoffs by the requesting employer that have not been adequately addressed, etc.

Certifying Officers, at their discretion based upon information available to them, may deny the employer’s RIR request at this stage of review.

Applications not meeting current completeness/compliance requirements will be issued a Notice of Findings (“NOF”), as appropriate.

For the remaining applications which have met the completeness/compliance review, applications for positions requiring a Bachelor’s degree and three or more years of experience, or a Master’s degree and six months of experience (assuming these requirements are appropriate), should be certified and not subject to a market re-test.

Applications that do not meet this criteria will be reviewed to determine if the level of recruitment, and the detail provided in the recruitment report, satisfy the Certifying Officer such that further recruitment is unnecessary.

If the recruitment and results statement is sufficient, the application must be certified.

Retest Provision:

For any remaining applications, both those in IT occupations and others, the employer and/or attorney of record will be sent a letter which offers the following options:


Withdraw the application;

Request that the case be remanded to the SWA and placed in the SWA que based on its priority date unless the employer requests, in writing, that the case be put in the cue based on its remand date; or

Conduct a one-day “re-test” of the labor market in accordance with direction provided by the Certifying Officer.

Although employers may utilize the type of broadly crafted advertising common in previously filed RIR applications, their recruitment reports must specifically identify the disposition of all applicants for the position.

The employers will be advised to conduct their recruitment and to submit their recruitment report within sixty days of the date of the letter to the employer.

Employers are encouraged to provide copies of the resumes submitted in response to the advertisement.

In the event re-test documentation is not provided within seven days of its date to the Certifying Officer, the case will be considered abandoned.


“Look-Back” Provision.

Currently, the DOL permits employers who have filed an RIR application and who have placed an advertisement within the past sixty days to use that advertisement in lieu of placing an additional newspaper advertisement.

When a re-test of the market is required in support of an RIR application, the DOL will permit employers to utilize advertisements placed within the past six months.

Therefore, if an employer already tested the market within the past six months, it is not necessary for the employer to conduct and incur the cost of any additional recruitment efforts.

However, employers electing to pursue this option must be able to submit to the DOL a detailed recruitment report at the level of individual positions and document reasons why applicants were not selected.

In addition, a copy of the advertisement must be provided.

The DOL reserves the right to review resumes, and may do so for quality assurance purposes.

Application Modification Provision.

Employers who elect to engage in the “re-test” opportunity are permitted to make modifications to their application(s) so long as they do not change the occupational classification of the job opportunity at the original time of filing.

Changes may include different job requirements or additional duties.

However, any adjustments, including the addition of work experience, must meet DOL criteria such as experience not gained on the job, requirements not restrictive, etc., in order to be considered.

Decisions as to the acceptance of the proposed changes remain within the discretion of the respective Certifying Officer.

Employers who submit “re-tests” that have been modified in such a way that the job requirements are not in compliance with regulations will be sent a NOF, and not offered the opportunity to further re-advertise.

What this means:

The DOL’s newest policy memorandum review is an effort by the agency to reduce its tremendous RIR backlog and make way for implementation of the PERM program in 2004.

Interestingly, the DOL is permitting modification of requirements stated in the original RIR application.

DOL guidance issued during the high-tech boom encouraged employers to streamline applications by reducing requirements.

Therefore, applications that have been pending for several years may contain requirements below the minimum that the employer would normally require.

Employers with long-pending RIR cases now have the opportunity to state the minimum requirements more accurately.

The DOL’s memorandum does not address the thousands of RIR applications that were automatically remanded in 2003 based upon the assumption of U.S. worker availability in the Bay Area IT industry, however, the DOL has recently announced that it has stopped all automatic remands.

PERM Regulation Not Expected Until 2004:

The Department of Labor (“DOL”) has announced that the Program Electronic Review Management System(“PERM”) regulation will not be published until early 2004.

The PERM program, once implemented, will replace traditional and Reduction in Recruitment (“RIR”) labor certification processing.

The DOL expects that the regulation will take effect 120 days after its publication.

What this means:

Employers should consider filing a traditional or RIR application prior to implementation of the PERM program as PERM regulations may be very restrictive.

The proposed rule issued in May 2002 to describe how the DOL plans to implement the PERM program may no longer provide a useful guide to PERM implementation, since many of the provisions contained in this proposed rule have apparently been abandoned by the DOL.

Elimination of Special Registration Under Consideration

Newspapers around the country have reported that “a decision to end the [Special Registration] Program is likely and could be announced within days.” The report is a result of widespread belief that Special Registration is fundamentally flawed and a misguided attempt to increase security. Such criticism includes: lack of uniform procedures, unclear registration requirements, and foreign nationals, primarily Arabs and Muslims have been detained for minor status violations. The program has also been criticized as substituting national origin/racial/religious profiling for effective law enforcement profiling based on intelligence information.

What this means:

The National Security Entry-Exit Registration System (“NSEERS”), or Special Registration, remains in effect. Those subject to Special Registration must continue to register and re-register as required by law.