11/21/2003: DOL Released RIR Backlog Reduction Guidelines
· On November 20, 2003, the Chief of Foreign Labor Certificdation Division of the DOL, William Carpenter, released a memorandum to set forth guidelines for the Regional Certifying Officers for processing of RIR applications. We will outline the new guidelines.
· Regional Certifying Officers review the RIR applications on two broad criteria: (1) One is whether the application is "complete" in documentation and procedure, and whether it complied with the applicable regulations such as absence of unduly restrictive requirement and adequate action taken at the state level for the employer who engaged in layoffs following the Zigler Memo. (2) The second standard is whether the employer engaged in a pattern of recruitment and adequate test of the labor market before they submitted the RIR application. The Memorandum require the Regional Certifying Officers to take a step-by-step action following guidelines below:
o First, the Regional Certifying Officer must review the RIR applications using the standard (1). If their review of the RIR shows that the applications failed in this criteria, they should issue a Notice of Finding (NOF). If the employer fails to sufficiently rebut the findings, then application is denied and "dead." If their review indicates that the applications met this criteria, depending on the level of positions, the Certifying Officer should either approve the application without further review or conduct the next level of review. Under this rule, if the job requires a Bachelor's degree plus 3 or more years of experience or a Master's degree plus 6 or more months of experience, the Certifying Officer is mandated to approve the application.
o However, for the jobs which are lower to these jobs, the Certifying Officer should conduct the next level of review. The next level of review standard (2) is whether or not the employer tested the labor market adequately. If the record reflects that the employer conducted adequate market test, the Certifying Officer should approve the application.
o The only cases which require a further action are those that failed to take adequate labor market test (failed in (2) test) and the job requires less than Bachelor's degree plus 3 years of experience or Master's degree plus 6 months of work experience. In these cases, the Certifying Officer must give the following options to the employers:
§ Completely withdraw the labor certification application; or
§ Just withdraw RIR nature of the application and continue the case as a regular application. This case should be remanded to the state agency for the supervised recruitment process. When the case is remanded, the case will be put back into the queue on the basis of the priority date; or
§ Conduct a "one-day retest" of the labor market and file another recruitment result report. In this case, the Certifying Officer can require the employer to submit a copy of all the resumes which the employer had received in response to the retest. If the employer engaged in recruitment during the last six months, instead of the retest, the employer can submit this recruitment result report. Again in this case, the Certifying Officer can require the employer to submit a copy of all the resumes which the employer had received during the six-month recruitment period.
o When the Certifying Officer requires the employer to conduct the retest of the labor market, they should allow the employer to change job descriptions or qualification requirement inasmuch as the changes do not result in change in occupational classification.
· The Memorandum will force certain Regional Certifying Officers to stop remanding RIR cases arbitrarily. It is expected that the RIR process will resume to "normalcy" in certain Regions that have stirred controversy. Salute to Mr. William Carpenter!
· On November 20, 2003, the Chief of Foreign Labor Certificdation Division of the DOL, William Carpenter, released a memorandum to set forth guidelines for the Regional Certifying Officers for processing of RIR applications. We will outline the new guidelines.
· Regional Certifying Officers review the RIR applications on two broad criteria: (1) One is whether the application is "complete" in documentation and procedure, and whether it complied with the applicable regulations such as absence of unduly restrictive requirement and adequate action taken at the state level for the employer who engaged in layoffs following the Zigler Memo. (2) The second standard is whether the employer engaged in a pattern of recruitment and adequate test of the labor market before they submitted the RIR application. The Memorandum require the Regional Certifying Officers to take a step-by-step action following guidelines below:
o First, the Regional Certifying Officer must review the RIR applications using the standard (1). If their review of the RIR shows that the applications failed in this criteria, they should issue a Notice of Finding (NOF). If the employer fails to sufficiently rebut the findings, then application is denied and "dead." If their review indicates that the applications met this criteria, depending on the level of positions, the Certifying Officer should either approve the application without further review or conduct the next level of review. Under this rule, if the job requires a Bachelor's degree plus 3 or more years of experience or a Master's degree plus 6 or more months of experience, the Certifying Officer is mandated to approve the application.
o However, for the jobs which are lower to these jobs, the Certifying Officer should conduct the next level of review. The next level of review standard (2) is whether or not the employer tested the labor market adequately. If the record reflects that the employer conducted adequate market test, the Certifying Officer should approve the application.
o The only cases which require a further action are those that failed to take adequate labor market test (failed in (2) test) and the job requires less than Bachelor's degree plus 3 years of experience or Master's degree plus 6 months of work experience. In these cases, the Certifying Officer must give the following options to the employers:
§ Completely withdraw the labor certification application; or
§ Just withdraw RIR nature of the application and continue the case as a regular application. This case should be remanded to the state agency for the supervised recruitment process. When the case is remanded, the case will be put back into the queue on the basis of the priority date; or
§ Conduct a "one-day retest" of the labor market and file another recruitment result report. In this case, the Certifying Officer can require the employer to submit a copy of all the resumes which the employer had received in response to the retest. If the employer engaged in recruitment during the last six months, instead of the retest, the employer can submit this recruitment result report. Again in this case, the Certifying Officer can require the employer to submit a copy of all the resumes which the employer had received during the six-month recruitment period.
o When the Certifying Officer requires the employer to conduct the retest of the labor market, they should allow the employer to change job descriptions or qualification requirement inasmuch as the changes do not result in change in occupational classification.
· The Memorandum will force certain Regional Certifying Officers to stop remanding RIR cases arbitrarily. It is expected that the RIR process will resume to "normalcy" in certain Regions that have stirred controversy. Salute to Mr. William Carpenter!