REDUCTION IN RECRUITMENT PROCESS (RIR)

 

The labor certification process is the crucial first step towards the application of an alien for an employment-based green card. The United States Department of Labor (DOL) has recently introduced certain measures that have helped to shorten the Labor Certification process considerably. This is known as a Reduction in Recruitment Process (RIR). The purpose of the RIR is to avoid the traditional Labor Certification process and could save as much as two years. 

 

Unlike the Labor Certification process, the RIR is pre-emptive and ‘backward looking’ in nature. RIR is a process that requires an Employer to demonstrate that it has ‘conducted adequate recruitment through sources normal to the occupation and industry within the previous six months’. The U.S. Employer secures the approved Labor Certification by documenting that it has already tried and failed to recruit qualified workers for the job during the six months prior to the filing of the Labor Certification application and that the targeted recruitment for the job at hand was not achieved.

 

The rationale behind filing an RIR is to show that the Employer has tested the U.S. job market and found no qualified U.S. workers in the six months preceding filing of an Application for Alien Employment Certification. Some Employers place advertisements in the media for a period and then file an Application, thereby documenting good faith efforts.

 

RIR requests will be encouraged and given expedited processing by State and Regional offices of the Department of Labor (DOL) for positions:

 

Requirements for a Successful RIR Case

 

  1. An occupation in which there is a ‘shortage’: In the case of Computer Systems Analysts or Software Engineers, there is a well-documented shortage of qualified US applicants. For other fields the shortage may be only regional and may need to be proved on a case-to-case basis.
  2. Prevailing Wage: The recruitment must be conducted at the prevailing wage (or higher) in the Metropolitan Statistical Area or other area where the job openings are located. The State Employment Security Agency (SESA) would return the application to the Employer if there were deficiencies such as an inadequate wage offer or restrictive job requirements.
  3. Adequacy of the recruitment process: The Employer must be able to demonstrate and document bona-fide efforts for recruitment 6 months prior to the filing of the RIR. It is most important to be able to document a ‘pattern of recruitment’. This is discussed in detail below.
  4. Documentation of normal recruitment practices: The employer must be able to furnish documents to establish that he has carried out adequate recruitment attempts through sources relating to the occupation.
  5. Multiple openings: Ideally, the Employer should be able to document multiple positions/job openings for the proffered position.

 

Important note: The RIR will be given expedited processing at the Regional office of the DOL if it contains no deficiencies. Those with deficiencies will be processed in the order that they were received along with other applications (i.e. as a regular case). Where there are deficiencies, which would have affected the recruitment, it is possible that the Employer will be advised to recruit through the regular process, as it is unlikely that the RIR will be approved.

 

Documentation Showing Adequacy of the Recruitment Process

 

It is important to support the RIR with documentation that would show a ‘pattern of recruitment’ for the 6 months prior to the application. The recruitment must also be through sources ‘normal’ to the occupation and the industry. For a computer position a computer publication would be considered to be a normal source for recruitment. Listed below are methods of recruitment that may be utilized - the more that can be documented as having been used, the better.

 

1)       Copies of Print Media Advertisements: This would include newspapers (regional or national), magazines (general or trade), professional journals and other appropriate publications. The ideal RIR advertisement conveys a general idea of the employer, the position to be filled, the overall requirements, approximate salary and/or benefits and should be worded to attract qualified applicants.

2)       Recruitment through Headhunting Agencies: Any letters or correspondence/agreements between the employer and any employment agencies evincing interest in hiring their services or discussing local labor market conditions.

3)       Job Fairs: Documentation to show the Employer’s participation at such fairs through any letters, pamphlets, brochures etc. that may have been issued for this purpose.

4)       College recruitment: Pamphlets, brochures or letters that may have been written to universities and colleges for on-campus recruitment.

5)       Internet Recruitment: The Employer could have it’s own web site detailing the job openings from time to time. Other websites include Online Career Center, America’s Job Bank, Monster Board, where job postings on the Internet may be made.

6)       Internal Job Postings: An advertisement may be posted within the Employer’s premises on an employee bulletin board.

7)       In-House referrals or Incentive programs: Copies of resolutions or memoranda, with the company’s stated position on referrals made by employees.

 

As many as possible of the above documents would strength the RIR application and help establish a ‘pattern of recruitment’ by the employer in the last six months. At the end of this period, a Report of Recruitment may be prepared and a request filed with the DOL. The report must set out the number of job openings, the number of resumes received, whether interviews were conducted, brief grounds for rejection and the number of openings remaining. Upon receiving the Employer’s written request for a reduction in recruitment, the DOL will review the application for completeness and determine the appropriate prevailing wage.

 

Once the Labor Certification has been obtained, a petition (I-140), may be filed with the INS linking the position with the candidate.  The Employer must be able to demonstrate that firm has the ability to pay the proffered wage to the selected candidate and if the INS is satisfied with the evidence provided, which usually includes corporate tax returns, (unless the company employs 100 or more workers, in which case a letter from a financial officer of the company to this effect, will be accepted) the petition will be approved. Based on the approved I-140 petition, the foreign worker and his immediate family members would be in a position to apply for green cards – i.e. the final step in securing permanent residency in the US.

 

Limited Review Processing

 

SESA has determined that certain cases, where the job offer meets the prevailing wage and there are no special requirements or job duties that exceed the Specific Vocational Preparation according to the DOL, must undergo limited review processing and thereby be expedited. However, random cases would be selected for further scrutiny for quality control purposes as well as for SESA training.

 

Permanent Processing

 

An even more expedited processing has been envisioned by the DOL, referred to as PERM processing. This will hopefully become operational in March 2001. Under this process the entire labor certification should be completed within a few days. However, random cases would be selected for further scrutiny for quality control as well as to avoid fraud. If this is implemented, the labor certification process will be even further streamlined.

 

Click here to read letter regarding increasing efficiency in permanent labor certification.

 

Note: U.S. Department of Labor has published new conversion regulations for the RIR process on August 3, 2001. Click here to read details.

 

 

The information in this article is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice and does not establish an attorney-client relationship between The Law Offices of Cyrus S Nallaseth and the viewer.