Stern Elkind Curray & Alterman News and Updates
Friday, December 22, 2006
DOL Announces New Procedures for RIR Conversions at BECs
On December 22, 2006, the Office of Foreign Labor Certification announced new procedures for conversion of traditionally filed cases currently being processed at the Backlog Elimination Centers to the Reduction in Recruitment (RIR), process. The full announcement can be found here: http://www.foreignlaborcert.doleta.gov/pdf/backlog_faqs_12-22-06.pdf
Summary of the main points:
Why would an employer want to convert its TR case to RIR? RIR cases generally are completed and reach a disposition faster than TR cases. This enables the employer and alien beneficiary to move the case further to completion in the permanent labor certification process.
Who is generally eligible for RIR conversion under this “new” opportunity? An employer may file a request to convert to RIR if it has a currently pending TR application in one of the BECs (Dallas or Philadelphia) that meets the following conditions: The case has not already received a disposition, e.g. certification, denial; A Notice of Findings (NOF) has not been issued for the application, or a NOF has been issued but successfully rebutted at the time of sending the email request; The application is not for a Schedule B occupation; and the applicant or its attorney/agent has not received a Recruitment Report Instructions Letter from the BEC indicating that supervised recruitment has ended and providing instructions for the results.
A “hold harmless” benefit in the new guidance allows the employer to commence recruitment without concern that the BEC will initiate job order activity before the employer can submit the recruitment request along with the recruitment, making the applicant ineligible to convert. Any applicant who sends in an e-mail with the specified language before January 20, 2007, indicating its intent to request conversion of its TR case to RIR status will be granted the assurance that the RIR conversion will not be denied solely because the BEC has initiated TR recruitment activities. Therefore, the employer is free to engage in recruitment for preparation for the RIR package without the concern that the BEC will begin TR recruitment activities.
What are the steps under this opportunity?
a) No later than January 20, 2007, the applicant or its designated attorney sends an e-mail to the appropriate BEC using specified language indicating its intent to convert a TR case to RIR status. The e-mail should also contain any proposed amendments.
b) The BEC will place the applicant’s case in “hold” status pending receipt of the RIR conversion package.
c) The BEC will send the applicant a receipt e-mail with the new prevailing wage for the position upon which to base the wage offered in its recruitment, and the status of any proposed amendments, i.e., accepted or not.
d) The BEC will send the employer any resumes the BEC has received in response to any job order activity or advertisement for the employer to consider in preparing its RIR recruitment results package. (Note: This only pertains to cases where a job order activity has been initiated or advertisement was posted by the employer before the employer sent the intent to convert e-mail. In such an instance, this advertisement may be submitted for consideration as part of the RIR conversion recruitment package.)
e) The applicant engages in recruitment and prepares the RIR recruitment results report and supporting documentation (the RIR conversion package).
f) The applicant or its designated representative sends the RIR conversion package to the appropriate BEC in hard copy, by regular mail, certified mail, or mail courier, with the subject “RIR Conversion Package – [case number]” no later than April 1st, 2007. If no package is postmarked for receipt by this date, the case will be closed. These applications do not revert to the TR queue and the decision to close is not subject to appeal.
g) Once the RIR conversion package is received by the BEC, the BEC staff will evaluate the package and determine whether the case can be converted to RIR status.
h) If the case meets the criteria for RIR conversion, the case will be converted and processed as an RIR application. If the case is not eligible, or exhibits other deficiencies that make it ineligible for RIR conversion, the employer will receive a letter advising that the RIR conversion request has been denied and the case will be processed as a TR case retaining its original priority date.
What types of cases are appropriate for an RIR conversion request? Job opportunities which hav an SOC code falling into the following:
1. “In (high) demand” Occupations as listed on O*NET
2. High growth industries identified by ETA: http://www.doleta.gov/BRG/JobTrainInitiative/
3. Any position(s) identified by SWA information as in-demand or shortage occupations.
If an employer’s job opportunity has a SOC code that is not within one of these categories, the employer is not prohibited from filing an RIR conversion request, but the applicant will have to provide evidence at the time of filing the RIR conversion package that the job opportunity is in an occupational field in a demand, high growth, or shortage occupation that is appropriate for a request for a waiver of supervised recruitment.
Summary of the main points:
Why would an employer want to convert its TR case to RIR? RIR cases generally are completed and reach a disposition faster than TR cases. This enables the employer and alien beneficiary to move the case further to completion in the permanent labor certification process.
Who is generally eligible for RIR conversion under this “new” opportunity? An employer may file a request to convert to RIR if it has a currently pending TR application in one of the BECs (Dallas or Philadelphia) that meets the following conditions: The case has not already received a disposition, e.g. certification, denial; A Notice of Findings (NOF) has not been issued for the application, or a NOF has been issued but successfully rebutted at the time of sending the email request; The application is not for a Schedule B occupation; and the applicant or its attorney/agent has not received a Recruitment Report Instructions Letter from the BEC indicating that supervised recruitment has ended and providing instructions for the results.
A “hold harmless” benefit in the new guidance allows the employer to commence recruitment without concern that the BEC will initiate job order activity before the employer can submit the recruitment request along with the recruitment, making the applicant ineligible to convert. Any applicant who sends in an e-mail with the specified language before January 20, 2007, indicating its intent to request conversion of its TR case to RIR status will be granted the assurance that the RIR conversion will not be denied solely because the BEC has initiated TR recruitment activities. Therefore, the employer is free to engage in recruitment for preparation for the RIR package without the concern that the BEC will begin TR recruitment activities.
What are the steps under this opportunity?
a) No later than January 20, 2007, the applicant or its designated attorney sends an e-mail to the appropriate BEC using specified language indicating its intent to convert a TR case to RIR status. The e-mail should also contain any proposed amendments.
b) The BEC will place the applicant’s case in “hold” status pending receipt of the RIR conversion package.
c) The BEC will send the applicant a receipt e-mail with the new prevailing wage for the position upon which to base the wage offered in its recruitment, and the status of any proposed amendments, i.e., accepted or not.
d) The BEC will send the employer any resumes the BEC has received in response to any job order activity or advertisement for the employer to consider in preparing its RIR recruitment results package. (Note: This only pertains to cases where a job order activity has been initiated or advertisement was posted by the employer before the employer sent the intent to convert e-mail. In such an instance, this advertisement may be submitted for consideration as part of the RIR conversion recruitment package.)
e) The applicant engages in recruitment and prepares the RIR recruitment results report and supporting documentation (the RIR conversion package).
f) The applicant or its designated representative sends the RIR conversion package to the appropriate BEC in hard copy, by regular mail, certified mail, or mail courier, with the subject “RIR Conversion Package – [case number]” no later than April 1st, 2007. If no package is postmarked for receipt by this date, the case will be closed. These applications do not revert to the TR queue and the decision to close is not subject to appeal.
g) Once the RIR conversion package is received by the BEC, the BEC staff will evaluate the package and determine whether the case can be converted to RIR status.
h) If the case meets the criteria for RIR conversion, the case will be converted and processed as an RIR application. If the case is not eligible, or exhibits other deficiencies that make it ineligible for RIR conversion, the employer will receive a letter advising that the RIR conversion request has been denied and the case will be processed as a TR case retaining its original priority date.
What types of cases are appropriate for an RIR conversion request? Job opportunities which hav an SOC code falling into the following:
1. “In (high) demand” Occupations as listed on O*NET
2. High growth industries identified by ETA: http://www.doleta.gov/BRG/JobTrainInitiative/
3. Any position(s) identified by SWA information as in-demand or shortage occupations.
If an employer’s job opportunity has a SOC code that is not within one of these categories, the employer is not prohibited from filing an RIR conversion request, but the applicant will have to provide evidence at the time of filing the RIR conversion package that the job opportunity is in an occupational field in a demand, high growth, or shortage occupation that is appropriate for a request for a waiver of supervised recruitment.
Wednesday, December 13, 2006
RIR Conversion Guidelines For BEC Cases Expected Soon
Members of this firm recently attended a teleconference in which it was announced that the DOL would soon be publishing new procedures for conversion of traditional cases at the backlog centers to the RIR option. One of the presenters in the teleconference had just attended a meeting with the DOL and obtained some preliminary information on the new procedures.
Though the following has not yet been confirmed by any official announcement, it is expected that the new procedures will require notification to the BEC of the intention to convert to RIR. The BEC will then respond with the required wage and recruitment instructions. Those instructions are expected to include one print ad placement and one item from the menu of alternative recruitment strategies under PERM, the new labor certification process in place since April, 2005. There may be a date certain by which the conversion request must be received at the BEC or face case closure.
Though the following has not yet been confirmed by any official announcement, it is expected that the new procedures will require notification to the BEC of the intention to convert to RIR. The BEC will then respond with the required wage and recruitment instructions. Those instructions are expected to include one print ad placement and one item from the menu of alternative recruitment strategies under PERM, the new labor certification process in place since April, 2005. There may be a date certain by which the conversion request must be received at the BEC or face case closure.
Thursday, December 07, 2006
USCIS Reaches H-2B Cap For First Half of Fiscal Year 2007
USCIS announced on December 5, 2006 that it had received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the first six months of Fiscal Year 2007. November 28, 2006 was the “final receipt date” for new H-2B worker petitions requesting employment start dates prior to April 1, 2007. The “final receipt date” was the date on which USCIS determined that it had received enough cap-subject petitions to reach the limit of
33,000 H-2B workers for the first half of FY 2007.
USCIS will apply a computer-generated random selection process to all petitions which are subject to the cap and were received on November 28, 2006. This process will select the number of petitions needed to meet the cap. USCIS will reject all cap-subject petitions not randomly selected. USCIS will also reject petitions for new H-2B workers seeking employment start dates prior to April 1, 2007 that arrive after November 28, 2006. USCIS will continue to accept petitions for new H-2B workers seeking employment start dates on or after April 1, 2007 that arrive after the "final receipt date" only if such petitions are supported by a valid temporary labor certification.
Petitions for workers who are currently in H-2B status and returning H-2B workers do not count towards the congressionally mandated bi-annual H-2B cap. “Returning workers” are exempt from H-2B cap limitations. In order to qualify, the worker must have counted against the H-2B numerical cap between October 1, 2003 and September 30, 2006. Any worker not certified as a “returning worker” is subject to the numerical limitations for the relevant fiscal year. Petitions received after the “final receipt date” which contain a combination of “returning workers” and workers subject to the H-2B cap will be rejected with respect to non-returning workers. Petitioning employers will receive partial approvals for those aliens who qualify as “returning workers” if otherwise approvable.
USCIS will continue to process petitions filed to:
• Extend the stay of a current H-2B worker in the United States;
• Change the terms of employment for current H-2B workers and extend their stay;
• Allow current H-2B workers to change or add employers and extend their stay; or
• Request eligible H-2B “returning workers.”
More information about the H-2B work program is available at www.uscis.gov or by calling the National Customer Service Center at 1-800-375-5283.
33,000 H-2B workers for the first half of FY 2007.
USCIS will apply a computer-generated random selection process to all petitions which are subject to the cap and were received on November 28, 2006. This process will select the number of petitions needed to meet the cap. USCIS will reject all cap-subject petitions not randomly selected. USCIS will also reject petitions for new H-2B workers seeking employment start dates prior to April 1, 2007 that arrive after November 28, 2006. USCIS will continue to accept petitions for new H-2B workers seeking employment start dates on or after April 1, 2007 that arrive after the "final receipt date" only if such petitions are supported by a valid temporary labor certification.
Petitions for workers who are currently in H-2B status and returning H-2B workers do not count towards the congressionally mandated bi-annual H-2B cap. “Returning workers” are exempt from H-2B cap limitations. In order to qualify, the worker must have counted against the H-2B numerical cap between October 1, 2003 and September 30, 2006. Any worker not certified as a “returning worker” is subject to the numerical limitations for the relevant fiscal year. Petitions received after the “final receipt date” which contain a combination of “returning workers” and workers subject to the H-2B cap will be rejected with respect to non-returning workers. Petitioning employers will receive partial approvals for those aliens who qualify as “returning workers” if otherwise approvable.
USCIS will continue to process petitions filed to:
• Extend the stay of a current H-2B worker in the United States;
• Change the terms of employment for current H-2B workers and extend their stay;
• Allow current H-2B workers to change or add employers and extend their stay; or
• Request eligible H-2B “returning workers.”
More information about the H-2B work program is available at www.uscis.gov or by calling the National Customer Service Center at 1-800-375-5283.
Congress Extends Availability of Visas for Nurses to Work in Underserved Areas
On 12/6/06, the Senate passed the Nursing Relief for Disadvantaged Areas Reauthorization Act of 2005 (H.R. 1285). Passed by House on 6/20/06, the bill extends for three years the Nursing Relief for Disadvantaged Areas Act of 1999, which provides for up to 500 foreign nurses to come to the U.S. annually on H-1C visas to work in medically underserved areas.
Information provided by AILA.
Information provided by AILA.
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