May 17, 2007

DOL Regulation May 17, 2007: Terminates Substitution on Labor Certification Applications, Introduces New Expiration of Labor Certifications; and Bans Sale and Certain Payments of Labor Certifications

On May 17, 2007, the Department of Labor (DOL) published the final regulation which was developed in an effort to reduce fraud and abuse in the permanent labor certification program. Through the regulations, the DOL says it is trying to protect the integrity of the program. The regulation provides three key elements that affect our clients including, elimination of labor certification substitution, introduction of a new 180 day validity period for approved labor certification applications, and a ban on the sale, receipt or reimbursement of certain payments for labor certifications including the payment of attorney’s fees and costs involved in the preparation and filing of labor certification applications. The final rule also reinforces existing regulations regarding fraud and establishes procedures for debarment of employees from the use of the permanent labor certification program.

Termination of Labor Certification Substitution after July 16, 2007

Current practice allows for the substitution of alien beneficiaries on pending and approved labor certifications enabling employers to substitute a different or new alien in place of the original alien for whom the case was prepared and filed. The actual substitution typically (or often) occurs at the time the I-140 petition is filed with USCIS. The final DOL regulation prohibits substitution of aliens on labor certification applications, effective for filings made on or after July 16, 2007. This prohibition will not affect any substitutions that are filed and in progress or approved prior to July 16, 2007. Furthermore, any requests to modify pending labor certification applications will not be accepted after July 16, 2007. Coinciding with the DOL ruling, the USCIS, in anticipation of receiving a flood of substitution applications as a result of the DOL’s ruling, terminated the premium process service for Form I-140 petitions requesting labor certification substitution, effective May 18, 2007. Substitution applications on Form I-140 can still be filed through July 15, 2007, but employers will not be able to expedite the processing of such petitions using the USCIS’s premium processing service.


Expiration of Labor Certifications

Labor Certifications currently do not have an expiration date. In its proposed regulation, the DOL had proposed a 45 day period in which to file the I-140 petition following certification of the labor application. Under the final rule, the DOL requires the filing of an I-140 petition with USCIS within a 180 day period or the labor certification application will expire. Specifically, for labor certifications approved on or after July 16, 2007, the I-140 petition must be filed within 180 days of the labor certification approval. In addition, labor certifications approved before July 16, 2007 will expire 180 days after July 16, 2007, if an I-140 petition is not received by before January 12, 2008.


Ban on Sale and Certain Payments relating to Labor Certification Applications

The final regulation bans the sale, barter, purchase, and certain “improper” payments for labor certifications. It also prohibits employer practices that require an alien to pay the employer’s labor certification costs -- the DOL is taking the position that it is the employer’s obligation to bear the expenses incurred for the preparation and filing of the permanent labor certification application, including any attorney’s fees and associated costs for preparing and filing the application. The final regulation states that a foreign national is able to retain his/her individual counsel to represent their own interests in the labor certification process; however in instances where there is dual representation, when an attorney represents both the employer and the foreign national, the costs associated with preparation of the labor certification must be borne only by the employer. This change applies only to the labor certification application and not the I-140 petition or adjustment of status application. However, the preamble of the regulation is not completely consistent with this provision. Finally, the ruling prohibits an employer from reducing the wages, salary or benefits of the foreign national named on the application to cover the expenses related to the preparation and filing of the application. These inconsistencies are being reviewed and GT will provide further updates as we learn more about the implementation of this major change in the law.