DOL Eliminates Labor Certification Substitution Effective July 16, 2007

On Thursday May 17, 2007, the United States Department of Labor (DOL) published a regulation in the Federal Register amending the current regulations concerning the Labor Certification process for the Permanent Employment of Aliens in the U.S. This final regulation will be effective on July 16, 2007.

Synopsis of the Final DOL Regulation

This final regulation includes the following major changes to current Labor Certification Practices:

1.        The regulation prohibits the substitution of alien beneficiaries on permanent labor certification applications and resulting certifications;

2.        The regulation provides a 180-day validity period for approved labor certifications (Employers will have 180 calendar days from the date of the labor certification within which to file an I-140 Immigrant Petition for Alien Worker for the beneficiary of the approved Labor certification with the Department of Homeland Security (DHS));

3.        The regulation prohibits the sale, barter or purchase of permanent labor certification applications;

4.        The regulation requires employers to pay the costs of preparing, filing and obtaining a Labor Certification. The regulation strictly prohibits an employer’s transfer to the alien beneficiary of the employer’s costs incurred during the labor certification or application process;

5.        The regulation reinforces the existing law pertaining to the submission of fraudulent or false information and clarifies the DOL procedures for responding to incidents of possible fraud; and

6.        The rule establishes procedures for debarment from the permanent labor certification program.

Elimination of Labor Certification Substitution as of July 16, 2007

The amended regulation prohibits the substitution of alien beneficiaries of labor certification applications as of July 16, 2007. The prohibition will not affect any labor substitution requests that are pending (in progress) with or approved by the DOL prior to July 16, 2007. 

No Modifications to Applications

The regulation clarifies the DOL’s existing “no modification” policy for Labor Certification applications filed on or after March 28, 2005 under the PERM process. The regulation states that requests for modifications to applications, where the application was filed after the rule’s effective date will not be accepted.

180 Day Validity Period for Labor Certifications

Under current regulations, an approved Labor Certification has no expiration date. The amended regulation changes this by requiring the petitioning employer to file an I-140 petition to proceed with the employment based immigration case within 180 calendar days of Labor Certification approval.   

Ban on Sale, Barter, Purchase, and Certain Payments

The regulation prohibits the sale, barter, and purchase of applications and approved Labor Certifications, as well as certain payments to employers in compensation or reimbursement for the employer’s costs incurred to obtain the labor certification. This includes the payment of the attorney’s fees and related costs.  

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