LABOR CERTIFICATION (INCLUDING RIR)
In order to apply for Labor Certification (LC), an applicant must obtain an employer
to sponsor him/her through a job offer. The LC process consists of three phases
leading to permanent residency. The first phase involves obtaining a Labor Certification
from the Department of Labor (DOL). The second phase involves obtaining an immigrant
visa petition approval from the U.S. Citizenship and Immigration Services
(USCIS) based on the DOL Labor Certification. The third phase involves the applicant's
application to either adjust status from non-immigrant to permanent resident here
in the U.S., or obtain an immigrant visa at an American Consulate in the home
country.
In order to procure permanent residence through the LC process, the sponsoring
employer must be able to verify, through a good faith recruitment effort, that
there are no qualified U.S. workers available, willing, and/or able to fill the
position being offered.
There are two ways to process the LC application: Reduction in Recruitment (RIR)
or Regular processing (NRIR). The first, RIR, involves advertising and recruiting
before filing the LC application. RIR filings are generally placed in the fast
track at the local and Regional DOL. As a result, RIR filing will oftentimes drastically
reduce the total processing time. The second, NRIR, involves advertising and recruiting
under the supervision of the DOL, after the LC application has been filed. Choosing
between RIR and NRIR will depend on the type of employment offered, the location
of the job offer, and the goals of both the employer and employee.
Following is a brief explanation of RIR and NRIR processing:
· RIR Processing. When an RIR application is filed, the employer
will be requesting a partial or complete waiver of additional recruitment for
the position. This waiver can generally be obtained when the sponsoring employer
is willing to conduct recruitment prior to filing the LC application. For RIR
processing, the sponsoring employer will need to test the local job market to
establish that no qualified American workers are able, qualified and/or willing
to accept the offered position. This will require the sponsoring employer's placement
of advertisements in local newspapers, nationwide journals, and in some instances,
the Internet. Pursuant to DOL regulations, advertisements cannot be older than
six months at the time the LC application is filed. The application, along with
a summary of recruitment efforts, will be filed with the local employment commission
upon completion of the recruitment phase.
· NRIR Processing. When a NRIR application is filed, all recruitment
efforts to test the labor market for any able, willing and/or qualified U.S.
workers are performed by the employer under the direct guidance and supervision
of the local DOL. Once the recruitment period is completed, the employer will
summarize the results of the recruitment efforts to the DOL. The DOL's local
job bank will be involved in this process, and may screen applicants and refer
applicants for interviewing.
Upon certification of the LC by the DOL, Form I-140 will be used to petition
the USCIS center with jurisdiction over the employment location to have an immigrant
visa made available to the applicant. Please note that securing the certification
from the DOL is a prerequisite to filing Form I-140. At the time of filing Form
I-140, the sponsoring employer must show the financial capacity to pay the proferred
salary. To prove this, the USCIS may solicit evidence that the sponsoring employer
had the ability to pay from the date the LC was filed. This evidence may include:
(1) a copy of the sponsoring employer's most recent corporate income tax return
(with all schedules and attachments); (2) a notarized letter from the financial
officer confirming the sponsoring employer's financial ability to pay (applicable
only to companies with 100 or more employees); or (3) an annual report, with
independently audited financial reports. Upon approval, the applicant will be
eligible for permanent residency.
Please note that the above procedures may change in the near future, as the
DOL proposed, in May 2002, to significantly amend its regulations governing
the filing and processing of labor certification applications. The new system,
if implemented, would require employers to conduct recruitment before filing
their applications. Employers would be required to conduct both mandatory and
alternative recruitment steps. The alternative steps would be chosen by the
employer from a list of additional recruitment steps. The combination of prefiling
recruitment, automated processing of applications and elimination of the DOL's
required role in the recruitment and referral of U.S. workers is expected to
yield a large reduction in the average time needed to process labor certification
applications.
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