Mark A Ivener, A Law Corporation

DOL Publishes Final Labor Certification Rule, Prohibits Substitutions; USCIS Terminates Premium Processing for I-140s Requesting Substitutions

The Department of Labor (DOL) published a final rule, effective July 16, 2007, to “enhance program integrity and reduce the incentives and opportunities for fraud and abuse related to the permanent employment of aliens in the United States.” The provisions apply to permanent labor certification applications and approved certifications filed under both the Program Electronic Review Management (PERM) program regulation, effective March 28, 2005, and previous regulations implementing the permanent labor certification program.

In general, the DOL answered commenters’ concerns about a wide variety of issues, such as increased costs and the loss of priority dates resulting from the new prohibition on substitution of beneficiaries, by maintaining that the benefits of the new provisions to the labor market and in preventing fraud outweigh the concerns of individual employers.

Meanwhile, U.S. Citizenship and Immigration Services (USCIS) announced that beginning on Friday, May 18, 2007, Premium Processing Service is no longer available for Immigrant Petition for Alien Worker (Form I-140) petitions that request labor certification substitution. USCIS anticipates a substantial increase in the number of petitioning employers that will file I-140 petitions requesting Premium Processing Service and seeking labor certification substitution before July 16, 2007. The volume of such petitions is expected to exceed USCIS’ capacity to provide the service according to the program guidelines.

The rule’s major provisions include:

A prohibition on the substitution of beneficiaries. This prohibition will apply to all pending permanent labor certification applications and to approved permanent labor certifications. The prohibition does not affect substitutions approved by the DOL or Department of Homeland Security (DHS) before the effective date. It also does not affect substitution requests in progress as of the rule’s effective date. The final rule also prohibits the sale, barter, and purchase of labor certification applications and approved labor certifications.

A 180-day validity period for approved labor certifications. Employers will have 180 calendar days within which to file an approved permanent labor certification in support of an I-140. All permanent labor certifications approved on or after the effective date will expire 180 calendar days after certification, unless filed before expiration in support of a Form I-140 petition with DHS. Likewise, all certifications approved before the final rule’s effective date will expire 180 calendar days after the effective date unless filed in support of a Form I-140 petition with DHS before the expiration date.

A requirement that employers pay the costs of labor certification, including preparing, filing, and obtaining certification. The beneficiary may pay attorneys’ fees for representation of the beneficiary or other “legitimate” costs incurred by him or her, but an employer’s transfer to the beneficiary of the employer’s costs incurred is strictly prohibited. Prohibited payments include, but are not limited to, employer fees for hiring the beneficiary; receipt of part of the beneficiary’s pay, whether through a payroll deduction or otherwise, as reimbursement; reducing the beneficiary’s pay for purposes of reimbursement or pre-payment; goods and services or other wage or employment concessions; kickbacks, bribes or tributes; receipt of payment from beneficiaries, attorneys, or agents for allowing a permanent labor certification application to be filed on behalf of the employer; or the payment by the beneficiary of the employer’s attorneys’ fees.

The establishment of procedures for debarment from the permanent labor certification program. The DOL may debar an employer, attorney or agent for up to three years based on certain enumerated actions such as fraud, willful provision of false statements, or a pattern or practice of noncompliance with PERM requirements, regardless of whether the labor certification application involved was filed under the previous or current regulation. The rule extends from 90 to 180 days the period during which the DOL may suspend processing of applications under criminal investigation. The rule adds an intent requirement (“willful”) to the false information section; to be actionable, the employer must willfully provide false or inaccurate information to the DOL. The rule expands the existing provision for a right to review the DOL’s denial of an application or revocation of a certification, to encompass a right to review of a debarment action. The request for review would be made to, and in appropriate cases a concomitant hearing would be held by, the Board of Alien Labor Certification Appeals (BALCA).

Clarification of the DOL’s “no modifications” policy for applications filed on or after March 28, 2005, under the PERM process. The rule finalizes with minor changes a provision in the proposed rule prohibiting modifications to permanent labor certification applications once such applications are filed with the DOL.

The final rule includes details on issues raised by public comment and the DOL’s resolution of those issues, the DOL’s cost-benefit analysis, and statistics on small businesses’ use of labor certification. It was published on May 17, 2007, and is available.

USCIS’s new procedures under the final rule are available.
USCIS’s press release announcing termination of Premium Processing Service is here.

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About the Author

Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.