Traditional Recruitment

During the public briefings, the Department indicated that there will be 2 processing tracks—Reduction in Recruitment (RIR) and Traditional Recruitment (TR). As to the First in-First out (FIFO) principle, does this mean RIR cases will be separated or distinguished from permanent TR cases?

According to the Labor Department:

Yes, there will be two processing tracks—RIR and TR. Each track will have a separate FIFO queue. At the centers we will allocate resources so that RIR and TR cases receive equitable treatment in processing

According to the Labor Department:

Because RIR applications do not undergo the same recruitment process, these applications generally reach final resolution (certification or denial) in significantly less time than TR applications. Therefore, it is often to the employer's advantage to convert applications from TR to RIR

In order to establish a "pattern of recruitment," which date is used as the reference point – the date the original application was received or the date the RIR conversion request is received?

According to the Labor Department:

The point of reference for the pattern of recruitment is based upon the date the RIR conversion request was received. In other words, the earliest acceptable published advertisement or other recruitment activity must have occurred within six months prior to the date the RIR conversion request was received by the BEC. Earlier advertisements or other recruiting activities will not be considered by the BEC in determining whether a pattern of recruitment has been established.

Is there a date by which an employer's original application must have been filed in order to be eligible for conversion from TR to RIR?

According to the Labor Department:

Yes, applications must have been postmarked on or before March 28, 2005. This is an extension from the prior deadline and essentially includes all open TR cases in the backlog for which a job order has not been initiated.

According to the Labor Department:

No. Due to the Office of Foreign Labor Certification's (OFLC) intensive effort to eliminate the backlog, it is not practical for the BEC to delay recruitment on applications to await RIR conversion requests. Therefore, BECs will not delay recruitment to allow for RIR conversion. Requests for RIR conversion must be received prior to the beginning of supervised recruitment to be considered. Employers should send their requests and appropriate documentation as soon as possible to maximize their opportunity for RIR conversion.

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.

Does the Prevailing Wage used to establish a pattern of recruitment need to be 100% of the current prevailing wage for the occupation?

According to the Labor Department:

Yes, as per current regulation governing recruitment for Foreign Labor Certification applications, recruitment should be done at 100% of the prevailing wage.

According to the Labor Department:

No, only cases currently open and in process at the BEC are eligible.

However, if the employer is using the "No BEC Contact" procedure to reconstruct a case or the "Reopen" procedure to request reopen for a case you believe was closed in error as described in prior FAQs, you may submit your RIR conversion request and supporting documentation along with your reconstructed case. If requesting RIR conversion with another action, employer submissions should be clear that multiple actions are being requested, and documentation for each should be provided.

What if an employer has already had their RIR status denied, or has attempted to convert to RIR previously, is such an application eligible for RIR conversion?

According to the Labor Department:

Yes. If the employer is able to remedy the shortcomings in the pattern of recruitment or documentation, requests for RIR conversion may be made even if RIR was denied previously up until the BEC begins supervised recruitment on the application, at which time the case is no longer eligible for conversion.

The Department of Labor published a set of FAQs regarding the RIR Conversion Opportunity, i.e., the "hold harmless" or "safe harbor" recruitment period for converting traditional labor certification cases to Reduction in Recruitment. Note that in order to take advantage of this opportunity: "No later than January 20, 2007, the applicant or its designated attorney [must] send an e-mail to the appropriate BEC using the language specified (see question 9 below) indicating its intent to convert a TR case to RIR status." AND: "The applicant or its designated representative sends the RIR conversion package to the appropriate BEC in hard copy, by regular mail, certified mail, or mail courier, with the subject “RIR Conversion Package – [case number]” no later than April 1st, 2007. If no package is postmarked for receipt by this date, the case will be closed. These applications do not revert to the TR queue and the decision to close is not subject to appeal." See below for the FAQs.

According to the Labor Department:

Backlogged cases will be processed in Philadelphia and Dallas. PERM cases will be processed in Chicago and Atlanta.

According to the Labor Department:

No queue will automatically get preference. We plan to allocate resources based on the number of cases in each queue. However, we anticipate that the processing time for RIR cases will be shorter that that for TR cases.

How is the 2 track system going to work, that is the RIR and TR streams?

What resources will be allocated to each?

What is the time period for each?

Will the resources be allocated such that the last TR case and RIR case will be adjudicated together at the end of the 24-30 months?

According to the Labor Department:

At this time we are not able to answer questions which are this specific other than to say that it is our goal to treat RIR and TR cases in an equitable manner.

Will the Backlog Processing Centers (BPC) maintain separate tracks for a) traditional filings; b) RIR filings; and c) special handling filings? If not, why not?

According to the Labor Department:

The Centers will maintain separate tracks for traditional filings and RIR filings. At this point, all cases identified as special handling will be forwarded to on-site federal staff for processing. As an enhancement to the operating system, we are investigating how these cases can be electronically expedited.

According to the Labor Department:

No, simply send the request and appropriate documentation to the BEC as described above.

According to the Labor Department:

No, an application converted to RIR processing retains the priority date of the original application. Likewise, if the request for RIR conversion is denied, the case continues processing in the TR queue under the original priority date.

According to the Labor Department:

If the request is granted, the employer or their designated attorney will be notified by e-mail and the application will be moved from the TR processing queue to the RIR processing queue. Applications will continue to be processed by filing date.

According to the Labor Department:

The BECs will process the requests for RIR conversion on a first-come, first-serve basis. Response times to requests will vary depending on the volume of responses. Employers will not receive a confirmation that the request was received.

BECs will review the documentation provided and determine whether the documentation provided is sufficient.

According to the Labor Department:

Send the required information listed above by mail to the appropriate BEC based on where the case was filed. The information should be addressed:

For Philadelphia BEC:
ATTN: RIR Conversion Request & Documentation
U.S. Department of Labor
Employment and Training Administration
1 Belmont Avenue, Suite 200
Bala Cynwyd, PA 19004

For Dallas BEC:
ATTN: RIR Conversion Request & Documentation
U.S. Department of Labor
Employment and Training Administration
700 North Pearl St., Suite 400N
Dallas, Texas 75201

According to the Labor Department:

The supporting documentation required for conversion to RIR processing is the same as that required for an application initially filed under the RIR process, with the addition of a written request for conversion. Employers or their attorneys should ensure the request includes:

1. A written request for conversion;
2. Documentation demonstrating that a pattern of recruitment has been established within the six months preceding the date the conversion request is received by the BEC, and that any U.S. workers were rejected solely for lawful, job-related reasons. Documentation must provide a description of the recruitment process used and the results of the recruitment process;
3. Contact information regarding the application including an e-mail address where a reply to the RIR conversion request can be sent.