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 become effective.

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.