USCIS Issues Interim Guidance on Final Labor Certification Rule
U.S. Citizenship and Immigration Services (USCIS) has released interim guidance on the Department of Labor (DOL)’s final rule, effective July 16, 2007, which applies 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.
The rule’s major provisions include a prohibition on the substitution of beneficiaries, a 180-day validity period for approved labor certifications, a requirement that employers pay the costs of labor certification, the establishment of procedures for debarment from the permanent labor certification program, and clarification of the DOL’s “no modifications” policy for applications filed on or after March 28, 2005, under the PERM process.
USCIS said it will continue to accept Immigrant Petitions for Alien Worker (Forms I-140) that request labor certification substitution that are filed before July 16, 2007. I-140 petitions that request labor certification substitution and are filed before July 16, 2007, will be adjudicated to completion according to the procedures outlined in the March 1996 DOL Delegation Memorandum of Understanding, to include the adjudication of any relating motions to reopen or reconsider, or an appeal (Form I-290B) by the Administrative Appeals Office.
With the exception noted below, USCIS will reject I-140 petitions that require an approved labor certification that are filed with a supporting approved labor certification that has expired. Such petitions that are accepted by USCIS in error will be denied based on the fact that the petition was filed without a valid approved labor certification. Exception: USCIS will continue to accept amended or duplicate I-140 petitions that are filed with a copy of a labor certification that is expired at the time the amended or duplicate I-140 petition is filed, if the original approved labor certification was filed in support of a previously filed petition during the labor certification’s validity period. Such filings may occur when a new petition is required due to successor-in-interest, where the petitioning employer wishes to file a new petition subsequent to the denial, revocation, or abandonment of the previously filed petition and the labor certification was not invalidated due to material misrepresentation or fraud relating to the labor certification application; in instances where the amended petition is requesting a different visa classification from the one requested in the previously filed petition; or when the previously filed I-140 has been determined to have been lost by USCIS or the Department of State.