Traditional Labor Certifications - These labor certifications were filed with the state offices without any kind of recruitment. Petitions that are currently pending as traditional labor certifications will wait to be contacted by the Department of Labor to place two Sunday ads and to open a job order with the state office.

Reduction in Recruitment Labor Certifications ("RIR") - These labor certifications were filed with the state offices. Unlike traditional labor certifications, RIR labor certifications were filed with evidence that the sponsoring company had been recruiting for the position for a period of six months prior to filing the petition. In response to those recruitments, the sponsoring company either did not receive any qualified applications or not enough qualified applicants to fill all of the open positions.

PERM Labor Certification - PERM has been around since March of 2005 and it is the only way to file new labor certifications. PERM is the accelerated system that enables employers to recruit and file online. Unlike traditional labor certifications and RIR labor certifications, PERM generally takes anywhere from 2 months to 6 months to complete.

As most of our readers and clients know, when the new PERM system came into being, all of the pending traditional and RIR labor certifications were sent to the Backlog Elimination Centers in Philadelphia and Dallas. According to the Department of Labor, 362,000 petitions were forwarded to the Backlog Elimination Centers. The Department of Labor had hoped that a very large number of petitions would be cleared from the Backlog Elimination Centers through two through two mechanisms:

1. The "45 day letters" inquiring from each sponsoring company whether they remained interested in each petition. Much to the surprise of the Department of Labor, not as many petitions were withdrawn or abandoned as they had originally hoped; and,
   
   
2. PERM - The Department of Labor allows the conversion of a currently pending traditional or RIR labor certification to a PERM petition. The obvious advantage of doing this for an applicant is that the petition would be processed much quicker. Unfortunately, the disadvantage of converting the petition to PERM is that if the PERM petition is denied for any reason, the RIR or traditional labor certification also disappear into thin air along with the precious priority date. Not surprisingly, most people, particularly those with older priority dates, have been very hesitant to "convert" their pending petition to PERM.

The above puts the Department of Labor in a bind because they have promised that all of the traditional and RIR cases currently pending at the Backlog Elimination Centers will be processed by September 30, 2007. They still have in excess of 200,000 petitions and a few hundred employees to process the entire backlog in 11 months.

The solution that the Department of Labor has devised is to go back to its bag of old tricks. Up until a few years ago, it used to be possible to convert a pending traditional labor certification to RIR. The Department of Labor has in effect "extended" that prior guidance through today so that employers and their employees can now convert any pending traditional labor certification to RIR. This helps the Department of Labor because processing an RIR takes less work than processing a traditional petition where DOL has to go through the trouble of issuing recruitment instructions and then supervising the recruitment. It ostensibly helps current applicants because they have a chance of getting their labor certification approved sooner rather than later. It is also risk-free in the sense that if the RIR is denied, the petition will be processed through the traditional method. In other words, an RIR conversion failure does not automatically translate into a permanent denial of the petition and the loss of the priority date.

The relevant question is as follows: IS IT WORTH IT TO CONVERT TO RIR?

To answer the above question, we must take note of one limitation to the conversion. As stated above, RIR requires a recruitment effort of 6 months prior to the filing of the conversion request. If the Department of Labor gets to the traditional recruitment before the RIR conversion is filed, then the petition will be processed as traditional labor certification and the RIR recruitment will not be used.

Here is the nightmare scenario for an employer and their foreign employee: they start recruiting today in the hope of filing for RIR six months down the road. In six months, just prior to filing for the conversion, April, after completing 6 months of recruitment efforts, the instructions to recruit under the traditional method arrive just prior to filing for the conversion. That will in effect mean that the employer will have wasted 6 months of recruitment because the RIR conversion cannot be filed because the traditional recruitment has been ordered. The Department of Labor has also made it clear that an employer cannot approach it and ask it to "hold" a certain petition until they can complete the 6 months of recruitment efforts.

Once again, anticipating that perhaps not many people would take advantage of this option, the Department of Labor last week released a statement indicating that they will soon be able to post the processing dates they are working on at http://www.workforcesecurity.doleta.gov/foreign/perm.asp. They also added that they are working on petitions filed in 2001, and that due to the large number of petitions filed in early 2001, they expect to be working on those petitions for some time.

Now note the following: as I write this article, it is the end of October of 2006. The Department of Labor has indicated that the backlog will be eliminated by September 30th, 2007. Therefore, if DOL is going to maintain its word, we are 11 months from all petitions being processed. If setting up an RIR petition from scratch takes 6 months, it would seem that the possibility of starting the RIR recruitment and not being able to use it grows exponentially with the passing of each month. It also means that at most, RIR would save 5 months of processing for someone who starts RIR recruitment today. That is, if one believes that DOL will be done with all petitions by September 30, 2007. Of course, it must stated that the possibility that DOL will not meet its own deadline of September 30th of 2007 looms large.

In answering the question of whether it is worth it to convert to RIR, it is clear that if a company has been recruiting for the type of position that they have pending for the past 6 months, RIR should definitely be tried. There is nothing to lose. If the company has been recruiting for the past few months for that given position, and if they are willing to stretch it a few more months to complete 6 months of recruitment, it would also seem that RIR conversion is worth it.

The more difficult case involves a situation where the company has not been recruiting for the past 6 months. Should RIR recruitment from scratch be started today with the hope of converting to RIR in 6 months? The answer is that the newer the traditional petition is, i.e. 2005, 2004, the better the chances that the RIR will be carried out to fruition before DOL gets to it. It would seem that petitions from 2001 and 2002 have a better chance of begin caught up in regular recruitment prior to being able to convert to RIR 6 months down the road.

At the very least it is important for each foreign professional with a pending traditional labor certification to get in touch with the relevant person to verify whether recruitment for their position has been underway for the past 6 months. If the answer is yes, an RIR conversion should be in the cards. If the answer is no, then what will happen will depend on what the foreign professional and sponsoring employer agree to do, hopefully with the input of the attorney responsible for the petition.

If you are interested in reading the FAQs published by the Department of Labor, go to http://www.workforcesecurity.doleta.gov/foreign/perm.asp, and take a look under "Backlog FAQ Round 5."