Leading immigration attorney Carl Shusterman recently hosted a chat on our site on:

Labor Certification:
Switching from Regular to RIR

Jennifer Wipf: Welcome to our chat on converting from regular to RIR labor certification. I just turned moderation on and our guest expert Carl Shusterman is here everyone. Please remember that these questions and answers are of a general nature and should not be construed as legal advice.

Carl Shusterman: Good evening everyone.

Looks like we have a lot of questions regarding the labor certification regulations which were issued on August 3rd. I look forward to answering them for you. Let's get started right away.

Question #1: What is RIR? Is this better than a regular labor certification? How do I know which one I have? What is the difference?

Carl Shusterman: An RIR labor certification is an expeditious application. The RIR stands for Reduction In Recruitment. The genesis of RIR is contained in a memorandum issued by the Labor Department in 1997. For the complete text of this memorandum see:

http://shusterman.com/gal197.html

The RIR process allows an employer to recruit for a job prior to submitting an application for an alien labor certification. RIR labor certifications are processed much faster than regular labor certifications. In some parts of the country a regular labor certification takes several years to be approved. RIR labor certification may take only a few months time to be approved. To see the difference see:

http://shusterman.com/sesa.html

and

http://shusterman.com/doltimes.html .


Question #2: Who is allowed to get the different labor certifications and who needs them? And how do I get one and which one do I get?

Carl Shusterman: Basically, an employer can apply for almost any occupation as an RIR labor certification, with the exception of what the Labor Department refers to as a "Schedule B Occupation." A Schedule B Occupation requires little or no skill, education, or previous training. An example would be an elevator operator or a housekeeper. These are Schedule B occupations.

Question #3: How do I go about converting from regular labor certification to RIR?

Carl Shusterman: First of all, the regulations become effective next week, on September the 4th. Second, they only apply to applications for labor certification which were filed on or before August 3, 2001. Third, they only apply to labor certifications which are pending before a State Employment Security Agency and for which the employer has not been asked by the state to recruit for the job.

The way an employer applies to convert a regular application for labor certification to RIR is to show the state that it has recruited for the job during the last six months and that it has been unable to find US workers who are both qualified and available for the job. To read the complete text of the new regulations see:

http://shusterman.com/lc2-conversion.html

Question #4: I want to know about prevailing wages in RIR.

Carl Shusterman: As with any labor certification, an employer asking for expeditious processing under RIR must promise that when the immigrant worker obtains permanent residence that he or she will be paid at the prevailing wage. The prevailing wage is the average wage that a worker in a particular job and at a specific location earns. The rule realizes that is sometimes difficult to obtain an exact salary. Therefore, as long as the salary is within 5% of the average wage, the employer is considered to be paying the worker at the prevailing wage. For more information about how the Labor Department determines the prevailing wage, see:

http://shusterman.com/gal100.htm

Question #5: How is the economy effecting the RIRs these days? Due to unemployment rising?

Carl Shusterman: Despite the high rate of lay offs, particularly in the IT and telecommunications sector, most of the laid off workers have been hired by other employers. The unemployment rate is AROUND 4.5%, just
slightly above a 30 year low.

Our firm is yet to see an RIR labor certification which was rejected.

Question #6: I constantly check out the INS web site hoping to find something about the labor certification, but see very little, any suggestions?

Carl Shusterman: Since it is the Department of Labor, rather than the INS which administers the alien labor certification program, you are looking at the wrong website. We link to the Department of Labor homepage and to more than 20 other pages on their website which pertain to alien labor certification. See:

http://shusterman.com/toc-dol.html

Question #7: How long does the green card process take once labor certification is filed?

Carl Shusterman: Once the Labor Certification Process is approved, the next step is for an employer to submit an I-140 visa petition AT the INS service center having jurisdiction over the employer's place of business.
We link to all four INS service centers at:

http://shusterman.com/toc-sc.html .

The four centers are located in California, Nebraska, Texas and Vermont.

If you click on one of the service centers you will see that we list the states over which the service center has jurisdiction. Once you determine which service center has jurisdiction over your case, scroll down to I-140
and examine the waiting times for EB-2 or EB-3 cases. Once the I-140 is approved and your priority date is current, you are in a position to apply for permanent residence either by adjustment of status (FORM I-485 in the
United States or by applying for an immigrant visa from your home country. The I-485 processing times are also listed by service center.

Question #8: I just started the regular to RIR process and I need to know the waiting time, the pros and cons and possible complications.

Carl Shusterman: First, remember that you can not apply to convert from regular to RIR until next week on September the 4th. If you have already applied to do so, you have jumped the gun. I would advise you to withdraw your request and resubmit it after September the 4th.

Regarding possible glitches, it must be clear that your employer has actively recruited for your job and has been unable to find US workers to fill the position. The obvious advantage of converting from regular to RIR
labor certification is that the processing time is shortened from years to months.

The only disadvantage is that before the regulations were issued, you couldn't convert from regular to RIR without losing your priority date. The beauty of these regulations is that you can convert your labor certification from regular to RIR and keep your original priority date.

Question #9: Hi, how are you? I have been waiting for Labor Certificate for 5 months. I even did not got a receipt from DOL. What should I do?

Carl Shusterman: Applications for labor certifications are not filed with DOL but with the State Employment Security Agency in the state where your job is located. Because there are no filing fees for labor certification
applications, the state can not issue a filing fee receipt. It is a good practice to mail applications for alien labor certification by certified mail. This way, you will always get a receipt from the post office showing
that the state has received your application.

Because of the thousands of labor certifications filed during the first four months of this year to qualify immigrants under Section 245(i) (See: http://shusterman.com/life.html) the states became extremely backlogged
with labor certifications. For example, if you filed 5 months ago and did not send your application by certified mail, you may have to be patient until the state Labor Department notifies you that they have received your
application.

Question #10: Is it true that labor certification is required only once? If so, how do we prove to the INS that we had a labor certification approved before?

Carl Shusterman: Yes, the application for alien labor certification only needs to be submitted and approved once. Upon approval, you must attach the approved labor certification to the I-140 visa petition that you submit to the INS.

Question #11: Will the INS check your W-2 to see whether you are paid the prevailing wages after you get the P.R.? Thank you.

Carl Shusterman: Frequently, the INS asks for recent pay receipts or other similar proof that you are being paid the prevailing wage before they approve your application for adjustment of status.

Question #12: I was with a company A which was sponsoring my GC application. I was laid off when the process was in (terminal) I-140 stage (PD August 2000) . Now I have an offer with company B which is going to sponsor my GC. Can I make use of the RIR conversion rules to process my LC in RIR? The new company may not have advertised enough so as to apply for RIR.

Carl Shusterman: Sorry, no :(

Thank you for your questions. I hope that my answers cleared up a lot of the confusion concerning converting to RIR status. I hope you will join us for our next chat entitled "The New INS K-3 Regulations," which will take place on September 10th at 5:30 p.m. PDT or 8:30 EDT.

I have read the K-3 regulations numerous times and they are far more complicated than they would appear at first glance. Before the chat you may wish to read about the new K-3 and K-4 non-immigrant categories at:

http://shusterman.com/life.html  under "New K and V visas." Also we will be having another chat on applications for registered nurses in the near future. We will announce the date and time of this chat shortly.

Good night everyone.

Jennifer Wipf: Good night Carl, and thank you!

All Shusterman Chats

Articles Archive