February 15, 2006
DOL Proposal to Eliminate Substitutions/Imposition of 45-Day Deadline
for Filing I-140s
As GT reported on August 17, 2005, the Department of Labor (DOL) seeks
to eliminate substitution in labor certifications. The DOL is publishing
a Notice of Proposed Rulemaking (NPRM or proposed rule) with request for
comments on the elimination of substitution and other provisions seeking
"to enhance program integrity."
It is important to note that these changes have not yet taken effect.
This means that as of the writing of this notice, there is no time limit
on the filing of an I-140 petition and there is no ban on substitution of
sponsored employees. Applications filed before this new final rule becomes
effective will continue to be processed and governed by current regulation.
The current regulation does not have a 45 day time limit on the filing of
an I-140 petition and allows for substitutions. This regulatory change
would not affect substitutions approved prior to the final rule's effective
date. So, until this final rule becomes effective companies may continue
the practice of substitution and they do not have to have an I-140 petition
filed within 45 days. At this time we do not know when the final rule will
Among other key changes, in this new rule, the DOL is proposing to eliminate
the current practice of allowing the substitution of one sponsored foreign
national for another on applications that are still pending with DOL, as
well as those that have are certified. This is problematic for many companies
as they have undergone a very rigorous process to secure a labor certification.
In some instances the proposed worker is no longer able to fulfill the position.
Discontinuing substitutions would be extremely unfortunate for employers
in shortage industries where the older labor certifications are very valuable
to their operations.
DOL is proposing to further reduce the likelihood of the submission of
fraudulent applications by proposing a 45-day validity period for a certified
application. This would mean that employers would be required to proceed
to the second phase of this process by filing the I-140 Immigrant Visa Petition
with USCIS within 45 days of receiving DOL certification. In addition, the
proposed rule expressly prohibits the sale, barter or purchase of permanent
labor applications and certifications, as well as other related payments.
Along these line, the rule will also include a prohibition on the practice
of allowing the sponsored foreign national to pay the costs associated with
the labor certification process. In theory, this could mean that employers
will need to bear the full cost of the labor certification process. The
H-1B visa program utilized by many employers to temporarily employ professionals
has a similar requirement, the application of this new rule in practice
may be very similar. Finally, the DOL is also setting forth enforcement
mechanisms to protect program integrity, the proposed rules provide a debarment
mechanism which would prohibit employers from using this program to sponsor
foreign nationals for certain violations. These new prohibitions will apply
to employers who are processing applications both under the old program
as well as the new PERM program.
What is Permanent Labor Certification?
Obtaining DOL labor certification is the first step in obtaining permanent
resident ("green card") status for many foreign nationals who are sponsored
by U.S. employers. The process involves recruitment efforts by the sponsoring
employer to prove to the DOL that U.S. workers are not available for the
job being offered. The purpose of the program is to protect U.S. workers,
those who are U.S. Citizens or legal permanent residents (“green card” holders).
This process is the most common process through which foreign national can
obtain permanent residence and the certification is issued only after the
U.S. employer has convincingly demonstrated to the DOL that no U.S. worker
is able, qualified and willing to perform the work for which a foreign national
is being hired.
On behalf of the business community and our clients, GT is very involved
in the response to DOL on these new proposals and will continue to update
our readers as the process moves forward. Readers interested in commenting
on the proposed regulation can contact us for additional information, including
ways to participate in the comment period on the issues.