Green Card

In the event an employer wanted to refile a reduction-in-recruitment (RIR) conversion application, what date would be considered the original filing date (priority date), i.e., is the filing date of the original application the date the traditional recruitment application was filed with the State Workforce Agency (SWA) or the date the application was accepted as a RIR conversion application?

According to the Labor Department:

The original filing date (priority date) is the date the original application was initially accepted for processing by the SWA under the basic labor certification process; it is not the date the application was accepted as a RIR conversion application.

Should I use the procedure described here if I have already heard from the BEC that my case was closed, or have another question about a case?

According to the Labor Department:

No. This process is only for cases about which the employer or their attorney has not heard from the BEC about the case at all. If you believe your case was closed in error due to non-receipt or non-response to a 45-day letter, you should send your request to the BEC where the closed cased was pending, the Dallas BEC at reopenrequest@dal.dflc.us or the Philadelphia BEC at reopenrequest@phi.dflc.us.

If you have another question about a case, it should go to the general information box at info@dal.dflc.us for the Dallas BEC or at info@phi.dflc.us for the Philadelphia BEC.

According to the Labor Department:

The employer must provide the address of the appropriate Certifying Officer for the area of intended employment. Addresses for the National Processing Centers and Certifying Officers, including a chart of the states and territories within their jurisdiction, can be found under the section, How to File, above.

If the employer includes job duties and requirements in the advertisement, must they be listed on the Application for Permanent Employment Certification, ETA Form 9089, as well?

According to the Labor Department:

Yes, if an employer wishes to include additional information about the job opportunity, such as the minimum education and experience requirements or specific job duties, the employer may do so, provided these requirements also appear on the ETA Form 9089.

According to the Labor Department:

If the employer disagrees with the skill level assigned to its job opportunity, or if the SWA informs the employer its survey is not acceptable, or if there are other legitimate bases for such a review, the employer is afforded one opportunity to provide supplemental information to the SWA. Additionally, the employer may choose to file a new request for a wage determination or request review by the Certifying Officer.

According to the Labor Department:

What additional documentation may the employer provide to the Certifying Officer when requesting a review of the prevailing wage?

The single opportunity to submit supplemental information to the State Workforce Agency represents the employer's only opportunity beyond the initial filing to include materials in the record that will be before the Certifying Officer in the event of an employer request for review under § 656.41. The appeal stage of the process is not intended to serve as an avenue for the employer to submit new materials relating to a prevailing wage determination.

Is it true that the Commission on Graduates of Foreign Nursing Schools (CGFNS) examination is not acceptable as a means of obtaining a labor certification for professional nurses under Schedule A?

According to the Labor Department:

Yes, the passage of the examination alone is not acceptable; the alien is required to have a CGFNS Certificate. A CGFNS Certificate documents that, in addition to having passed the nursing skills examination, the alien has demonstrated English language proficiency and CGFNS has made a favorable evaluation of the individual's nursing credentials.

How can the employer ensure that no unauthorized use of the employer's personal identification number (PIN) and/or usernames and passwords exists?

According to the Labor Department:

The employer is able to view all applications filed under the employer's account, to include all applications filed under the employer's sub-accounts, and we recommend employers implement a mechanism by which to identify any unauthorized use of the employer's PIN and/or usernames and passwords. We also recommend employers require those persons to whom sub-accounts have been assigned to carefully monitor the accounts for unauthorized activity. If the employer uncovers unauthorized use of the PIN and/or usernames and passwords, the employer must immediately contact the Department of Labor at PLC.HELP@DOL.gov.

NOTE: The employer is advised to set up a sub-account for the attorney or agent. Thereafter, the attorney or agent, using the sub-account's username and password, will be able to access the sub-account and be able to do what is required and/or needed to file labor certification applications on behalf of the employer, depending on the level of access granted by the employer. In filing applications for an employer, the attorney or agent must use the employer's PIN, which is provided to the attorney or agent upon creation of the sub-account along with the sub-account's own username and password. The employer is cautioned that ultimate responsibility for the representations of its attorney and/or agent rests with the employer.

Must the employer request a prevailing wage from a State Workforce Agency (SWA) if a Collective Bargaining Agreement exists or the employer is choosing to use a Davis-Bacon Act or McNamara-O'Hara Service Contract Act wage?

According to the Labor Department:

Yes, the employer must always request a prevailing wage from the SWA having jurisdiction over the proposed area of intended employment. The SWA is responsible for evaluating whether the wage source chosen by the employer is applicable and/or acceptable.

The USCIS has advised that I-130s which are pending at U.S. Embassies and Consulates should not be re-filed.  The USCIS notice was issued in the wake of the enforcement of the Adam Walsh Protection act which prevents U.S. Embassies and Consulates from processing I-130s.  The relevant portion of the USCIS notice appears below:  

According to the Labor Department:

All cases filed between 1/1/05 and postmarked before 3/28/05 will be processed by the Backlog Processing Centers.

According to the Labor Department:

There is no specific date by which an employer or their agent may request RIR conversion. However, by regulation, once the BEC has posted the job order to begin the recruitment process, the application is no longer eligible for RIR conversion. Since applications are processed by filing date, recruitment for TR applications is begun on a rolling basis based on priority date as cases are processed. Therefore, it is to the advantage of an employer who would like to request an RIR conversion to do so as soon as possible to minimize the possibility that the BEC begins recruitment on the application.

According to the Labor Department:

Due to the large volume of files transferred to the two Backlog Processing Centers, we cannot determine when your "45-day" Center Receipt Notification Letter (CRNL) will be mailed to you. As soon as your case is entered into the U.S. DOL Permanent Backlog System (PBLS), a "45-day" CRNL will be generated and sent to you and your attorney/agent of record, if one exists. Once you receive the "45-day" CRNL, all requested corrections, supporting documents, and the enclosed Selection of Continuation Option Letter must be returned to the appropriate Backlog Processing Center. In the designated space at the bottom of the Selection of Continuation Option Letter, please indicate your decision as to whether "I wish to withdraw this application" or "I wish to continue the processing of this application" with a check mark.

According to the Labor Department:

Unless the job opportunity for which certification is sought is covered by a Collective Bargaining Agreement or professional sports league's rules or regulations, the employer may request the State Workforce Agency use an employer-provided survey, or Davis-Bacon Act or McNamara-O'Hara Service Contract Act wage rate, if appropriate.

What should I do if I do not have a case number because I never received a 45-day letter or any correspondence from a Backlog Elimination Center (BEC)?

According to the Labor Department:

Please see the procedure regarding "No BEC Contact" here: backlog_faqs_09-11-06_nobec.pdf (PDF, 47K)

According to the Labor Department:

The Department of Homeland Security and a Consul of the Department of State have the authority to invalidate an issued labor certification if a determination is made, either in accordance with the agencies' procedures or by a court, that fraud or willful misrepresentation of a material fact involving the labor certification application exists.

According to the Labor Department:

In order to file permanent labor certification applications on-line, the employer must have a Permanent Online System account, username, password, and PIN. The account allows for the preparation and management of applications on-line, the username and password are necessary to access the account, and the PIN is required to submit applications on-line.

Permanent Online System account

An account is created after an employer has submitted registration information on-line at www.plc.doleta.gov and the employer information is verified by DOL. Account creation is a means by which to control filing authorization and to provide account holders filing management capabilities. An employer must be registered and be in possession of a PIN in order to file applications on-line. Upon verification of the employer's information, a password and confirmation of the account holder's username are sent to the employer in one email and, for security reasons, the PIN in another. It must be noted that upon accessing the account for the first time, the system requires the DOL password be changed to a new password. It is critical that the employer be aware of and know the new password, as only an individual in possession of the account's valid username and password is able to access the account.

Sub-account

The holder of a Permanent Online System account is able to create multiple sub-accounts with individual usernames and passwords for persons authorized by the employer to file applications in its name, to include attorneys and agents. It is a means by which to provide the employer the security of ensuring only persons authorized by the employer are filing on the employer's behalf. In creating a sub-account, the employer is able to designate whether the sub-account holder is the employer's employee, the employer's agent or the employer's lawyer. The employer is also able to designate the level of security access available to the sub-account holder.

NOTE: While the employer is permitted the opportunity to designate persons to represent the employer in the application filing process, the employer must recognize that ultimate responsibility for the accuracy of all representations made by such designated persons rests with the employer. Therefore, the employer is encouraged to establish measures designed to ensure only legitimate dissemination and use of account information.

The Board of Alien Labor Certification Appeals (BALCA) ruled (on or about December 7, 2006) that experience gained by the employee, beneficiary, with a prior employer may be disqualified if the sponsoring employer and the prior employer have a close relationship.  The general rule is that experience gained with the sponsoring employer can not be considered, absent special circumstances, as experience to qualify the beneficiary for the job offered in the labor certification.  In this ruling, BALCA has effectively held that experience with a prior employer will likewise be disqualified if the sponsoring employer has a close relationship with the prior employer.  In Matter of Harvest Office Services, Inc., 2005-INA-111 (12/7/06),

The message on my Corrections List states, "Failed Existence Check: Employer's address/phone number does not reference back to employer's name." What should I do to resolve this problem?

According to the Labor Department:

You must submit a copy of the employer's articles of incorporation, business license, state registration, or other official documents that establish the employer as a bona fide business entity at a specific address to the appropriate Backlog Processing Center.

I've already e-mailed a request about a "no contact" case to the "no BEC contact" e-mail address prior to this announcement, but have not heard anything, should I send another request?

According to the Labor Department:

No. BECs did not process e-mail to these boxes pending the release of this procedure. You should receive an initial acknowledgement of your request soon, depending on the volume of cases.