Substance of the Memo

The U.S. Department of Labor (DOL) issued a memorandum on 11/20/03 to its regional offices providing  procedural guidance on the processing of alien employment certifications (AECs) filed under RIR (Reduction in Recruitment). The memorandum was drafted to address the mounting backlog of cases at the State Workforce Agencies (SWA) and the inconsistent adjudication of cases by the regional offices.

Over the last six months, some regional offices (in particular Region VI, the region which has jurisdiction over worksites in California) have automatically remanded pending RIR applications for high tech occupations to the SWAs for supervised recruitment, without giving employers the opportunity  to address any alleged deficiencies in their pattern of recruitment.  Previously, DOL had issued "60 day letters" giving employers the opportunity to retest the labor market or to request remand to the SWAs.   As a result of these automatic remands, many of the SWAs received a large number of RIR applications and their backlogs increased dramatically.

1.   The "policy guidance" issued standard operating procedures for the following issues:

• "Initial Review Provision".  According to the memo, "All RIR applications must be reviewed based upon existing criteria for completeness of the application, demonstration of a pattern of recruitment and compliance with applicable regulations such as absence of restrictive requirements, layoffs by the requesting employer that have not been adequately addressed, etc".  This validates DOL's current process for issuing Notice of Findings (NOF) on RIR applications.
• If an application has satisfied the "completeness/compliance requirements", the regional office shall adhere to the following guidelines:
• If, according to the minimum requirements listed on the Form ETA 750 Part A, either a Bachelor's degree and 3 or more years of experience, or a Master's degree and 6 months of experience are required for the position, these applications should be approved, and there is no need for the market to be re-tested.
• If the minimum requirements fall short of those listed above, the regional office should approve the alien employment certification if "the level of recruitment and the detail provided in the recruitment report satisfy the Certifying Officer such that further recruitment is unnecessary".

2.   Retest Provision

For the remaining cases, the regional DOL offices are instructed to advise employers of the following options:

• Withdraw the application.
• Withdraw the request for RIR and have the case remanded back to the SWA and placed in the SWA queue based on the application's priority date.  Alternatively, if the employer wishes, the case can be put in the queue based on the (later) remand date.
• One day retest of the U.S. labor market.  The employer may elect to place a "one-day" ad in the newspaper to retest the U.S. labor market.  The employer will be required to provide a detailed report of the recruitment results, which must include "the disposition of all applicants for the position".  Although not required, employers are "encouraged" to provide copies of the resumes to the DOL.  When doing the retest, the employer will be allowed to "look back" to recent prior recruitment, and use advertisements placed in the last 6 months to satisfy the retest requirement.  Previously, DOL permitted employers to utilize only those advertisement placed within the last 60 days.  The new "look back" provision expands this to six months.

An important new development with respect to the retest is that the DOL memorandum includes an "Application Modification Provision". This allows employers to change the requirements in the applications as long as the changes do not "change the occupational classification of the job opportunity at the original time of filing". This is  very important for employers;  when many of these alien employment certifications were filed in the high tech boom, the SWAs encouraged employers to reduce the requirements so that the cases would be adjudicated quickly and favorably. However, it is clear that many of the requirements may not have been realistic and, before doing the "retest", employers now have the opportunity to change the requirements and/or job description as long as the changes do not alter the position and do not exceed the DOL guidelines governing minimum requirements. If DOL determines that the position requirements have been modified in such as a way that they are not in compliance with the regulations, DOL will issue a NOF and not provide the employer the opportunity to retest the U.S. labor market. 

3.  The Timetable Set by SWA  in California

In response to the DOL memorandum, the SWA in California (Employment Development Department) has indicated that DOL in San Francisco is recalling all cases that had been remanded to EDD on the grounds of worker availability.  The only applications not being sent back to DOL are those that only require a BS and 0 years of experience.  EDD is in the process of sending the files back to DOL and has provided the following schedule:

• Cases remanded to EDD on or before June 2003 will be returned to DOL by December 15, 2003.

• Cases remanded to EDD between July 1 to July 10, 2003 will all be returned to DOL by January 1, 2004.
• Cases remanded to EDD after July 10, 2003 have not been logged in yet. Therefore, EDD cannot even advise us if they have the case or not.  These cases will be logged in and out at the same time and EDD anticipates that it will return these cases back to DOL no later than April 1, 2004.

4.   What Action Is Required At This Time? 

According to EDD, we cannot request that a file be remanded back to DOL.  Moreover, it is not necessary because EDD is returning many of these files  to DOL pursuant to DOL's request.  EDD has indicated that it will not send a transmittal notice when these cases are transferred back to DOL.  Therefore, we will not be aware of the transfers until we receive further communication from DOL pursuant to the instructions contained in this policy guidance memo.  Based on the thousands of cases which are affected, it will take EDD some time to transfer these files and it will take DOL even more time to review them for appropriate action.  Further, it is foreseeable that the DOL processing times on RIR cases will continue to retrogress at least during the period of time when RIR applications are being returned in large numbers. 

Jackson & Hertogs will monitor the situation closely and advise our clients promptly in the event of any DOL action on their cases.

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