February 1, 2007

ELIMINATION OF LABOR CERTIFICATION RULE IS MOVED TO THE OMB

The Department of Labor proposal to eliminate substitution in labor certification moved to the Office of Management and Budget on January 26, 2007 for regulatory review. The rule was first announced by the Department of Labor on February 10, 2006, http://www.gtlaw.com/practices/immigration/news/2006/02/15.htm. The proposed rule was designed to “combat fraud in the certification of non-U.S. citizens for permanent employment based residence in the United States.” But where does this leave employees and employers with legitimate labor certification substitutions?

Current practice allows for the substitution of alien beneficiaries on pending and approved labor certifications. The existing practice of substitution gives employers and alien beneficiaries the ability to deal with realistic and common work-related situations. Job security and market availablity affect alien beneficiaries the same way they affect U.S. workers. People move, change employers and change careers on a regular basis, the substitution rule allows for employers and employees to manage these changes in the workplace without disrupting the employer’s workforce.

The final rule also expressly prohibits the sale, barter, or purchase of permanent labor certifications or applications. The basis for this is to “reduce the incentives and opportunities for fraud and abuse in the permanent labor certification program, and to propose measures to enhance the integrity of the permanent labor certification program.”

The language of the rule refers to the current practice as an “accommodation” to U.S. employers. It seems the Department of Labor has decided that possible fraud issues associated with this practice outweigh the actual real life benefits. The labor certification process is a long and complicated procedure for employers who are investing time and money to prove the validity of their job offer, the lack of U.S. workers interested in the job and their need for the foreign national. The substitution rule does not accommodate employers, it provides a practical and necessary solution when employees are promoted to a higher position within the company, resign, move or any number of other situations that might occur in which the original sponsored foreign national can no longer take the job offer and benefit from the labor certification. While the rule is reviewed at the OMB, any changes can be made to the rule before it is published in the Federal Register, we encourage employers to take action and voice their concerns with real-life examples of the impact this will have on legitimate business needs. We will be watching the rule closely and keep our clients informed of any updates.