August 17, 2005

U.S. Department of Labor Proposes Additional Changes to the Rules Governing the Permanent Labor Certification Process

The Department of Labor ("DOL") has proposed another amendment to the rules governing the use of certified applications filed under the new PERM program and those filed prior to March 23, 2005 under the old program. This labor certification is the first step in obtaining permanent resident ("green card") status for many foreign nationals who are sponsored by U.S. employers.

This proposal is DOL’s latest attempt at minimizing the amount of fraud and abuse which can occur throughout the labor certification process. To further reduce the opportunity for fraud, DOL proposes to eliminate the sponsoring employer’s opportunity to substitute or replace the original sponsored employee with a new foreign national when the original employee is no longer employed by the employer. Recent headlines have brought to light many ongoing DOL investigations revealing the selling, bartering and exchanging of either permanent labor certifications, applications or the fees affiliated with them. While most employer’s do not participate in such schemes, and the numbers of such fraudulent dealings may be minimal in comparison to the number of valid filings and substitutions, nevertheless, it has become a hot button issue for the DOL. In order to enforce the new requirements in these suggested amendments to the rule, DOL is also suggesting additional enforcement mechanisms, including debarment. This would prohibit the use of the PERM program by employers found to violate the provisions.

Historically, the ability to substitute and replace sponsored employees has proven incredibly beneficial for sponsoring employers. It saves employers additional costs in time and money to fill critical positions. Without this option, if the original sponsored employee leaves for any reason, the employer will be required to conduct additional recruitment and submit a new labor certification application to fill the position with a new employee. This duplicates the recruitment efforts for the same position that the DOL already certified as difficult to fill with U.S. workers. Employers need to voice their distress regarding this assault on their resources by contacting their congressional representatives and by commenting on the regulation after its publication.

DOL is also proposing to institute a 45-day deadline for employers to file their I-140 immigrant visa petitions with the U.S. Citizenship and Immigration Services, upon DOL certification of the labor certification application. This is the second step of the permanent residence process requiring verification of a number of factors including the bona fides of the company, the company’s ability to pay the offered wages and the sponsored employee’s credentials.

GT will continue to monitor proposed amendments to the immigration regulations and to provide related updates.