The RIR labor certification is a three-step process, in which a petitioner first files with the Department of Labor (DOL), and then with the U.S. Citizenship and Immigration Services (USCIS).
Step 1. Before filing with the DOL, your employer must recruit for your position. This generally involves at least one print advertisement and advertising on “America’s Job Bank,” a web site established by DOL. We have to file the RIR with the DOL within six months after publication of the print advertisement(s). We will work with your employer on the placement of this advertising. Our filing with the DOL includes a recruitment report, in which we demonstrate that no qualified U.S. workers responded to this advertising who were qualified and willing to assume this position. This RIR is filed with the state DOL office, which then forwards it to the U.S. DOL office. This process can take from about four months to up to two years, depending on backlogs at the state and U.S. DOL offices with jurisdiction over your place of employment.
Step 2. After your RIR is certified by the U.S. DOL, we file that approved labor certification as part of your immigrant visa petition with the USCIS. This is a fairly straightforward filing in which we demonstrate that your employer is a qualifying U.S. employer and is able to pay your wage, and that you qualify for the position. USCIS processing times vary, but generally are between three and eight months.
Step 3. After the visa petition is approved, you either can process for your visa at a U.S. consulate abroad or file an application with USCIS to adjust your status in the United States. There are benefits and drawbacks to each of these, and we can discuss which would be better for you. There are a few general rules, however. If you consular process, you cannot receive your immigrant visa abroad until you have completed your three years in H status required by your J-1 waiver, your spouse and dependent children receive no travel or work authorization until they return to the United States as permanent residents, and you must remain employed by your sponsoring employer until you return in immigrant status, and for some period of time thereafter. If you file with USCIS to adjust your status in the United States, you cannot file to adjust until you have completed your three years in H status required by your J-1 waiver, your spouse and dependent children can receive travel and work authorization during the pendency of your adjustment application, and you must remain employed by your sponsoring employer either (1) until the adjustment is approved and for some period of time thereafter, or (2) for at least six months after filing your adjustment application, whichever occurs sooner.
The USCIS had implemented a policy where individuals can file adjustment applications concurrently with filing a permanent worker visa petition. However, since a J-1 waiver physician, whose visa petition is based on a labor certification cannot file an adjustment application until he or she has completed three years in H status, it is unlikely that most J-1 physicians can take advantage of this concurrent filing policy.
In the past, most employers did not seek RIR. However, in light of increasingly long backlogs for labor certification, RIR requests are becoming much more common.
On October 1, 1996, the DOL implemented several changes via General Administrative Letter No. 1-97 (“GAL No. 1-97”). According to GAL No. 1-97, RIR was to be encouraged in cases where:
a) there was likely to be slight or no availability of U.S. workers;
b) there were no restrictive requirements;
c) the prevailing wage had been met;
d) the employer could show adequate prior recruitment, within the last six months, using real world recruitment practices that were customary for the occupation or industry.
An employer who seeks RIR requests it in writing along with documentation of prior recruitment within the preceding six months. Both the SESA and DOL are to expedite processing of RIR requests.