Final Rule Issued by Department of Labor Affects Alien Labor Certification Process
Rule, effective July 16, 2007, makes several changes to existing regulationMay 30, 2007
On May 17, 2007, the Department of Labor (DOL) issued a final rule that affects the alien labor certification process. Effective July 16, 2007, the rule seeks to enhance program integrity and reduce the incentives and opportunities for fraud and abuse in the labor certification and employment-based permanent residence process.
No more substitutions. Under the current regulations, an employer may substitute a new alien beneficiary for the one named on an approved labor certification if the new alien meets the criteria contained in the original labor certification. As of July 16, 2007, employers will no longer be allowed to substitute aliens on approved labor certifications, whether they were filed under the old labor certification process or the new Program Electronic Review Management (PERM) labor certification process. Under the new rule, after July 16, 2007, the labor certification will be valid only for the alien named in the labor certification application. The new rule will not affect substitutions approved by DOL or the Department of Homeland Security before July 16, 2007 or substitution requests in progress as of July 16, 2007.
No modifications to labor certification applications once filed. The new rule clarifies that requests for modifications to a PERM labor certification application filed after July 16, 2007 will not be allowed. Once a labor application is filed, it cannot be amended. If a change needs to be made, the employer will have to withdraw the labor certification, correct the mistake, and re-file the corrected labor certification.
Labor certifications will no longer be valid indefinitely. Under the current regulations, labor certifications are valid indefinitely. After July 16, 2007, labor certifications will be effective for only 180 days after the application is approved. In other words, if the approved labor certification is not submitted in support of an immigrant petition filed within 180 days, the labor certification will no longer be valid and a new labor certification will need to be obtained. If a labor certification has been approved prior to July 16, 2007 and not yet used, it must be used within 180 days of that date, or it will be invalid.
Ban on sale, barter or purchase of labor certifications. The DOL has stated that labor certifications are not commodities to be sold, bartered or purchased. This regulation specifically bans the sale, barter or purchase of labor certifications by any parties.
Employers must bear the costs of the labor certification process. Under the new rule, employers must pay for the costs of the labor certification process, including attorney fees, for any transactions that occur after July 16, 2007. In essence, the rule resembles the H-1B regulation that requires employers to bear the costs of preparing and filing an H-1B petition. Both regulations strictly prohibit the employer from transferring its costs to the alien employee.
Debarment. On or after July 16, 2007, DOL may debar an employer, attorney or agent based on certain actions, including fraud, willful provision of false statements, or a pattern or practice of noncompliance with PERM requirements. Debarment means that an individual or entity will not be allowed the use of the labor certification process for a specified period of time. In addition, the rule extends from 90 days to 180 days the period during which the DOL may suspend processing of applications under criminal investigation.
As stated, the final rule becomes effective on July 16, 2007 and will affect all employers who are sponsoring or will sponsor foreign employees for permanent residence in the United States. Those employers should study the regulation and take appropriate steps before July 16, 2007 or other new deadline, as necessary.
If you have any questions about the new regulation, please contact Gene Schaeffer (firstname.lastname@example.org or 608-284-2655) or Linda Clifford (email@example.com or 608-284-2605).