New Department of Labor Regulation
The new Department of Labor (DOL) regulation prohibiting substitutions of beneficiaries on labor certifications was published in the federal register on May 17, 2007. The effective date of the regulation will be July 16, 2007.
The regulation makes three major changes:
The End of Substitutions
The DOL had made known for some time that it was going to end the practice of allowing a petitioning employer to use an approved labor certification for another qualified foreign worker. The stated reason was to ensure that labor certifications would not become marketable commodities. Previously, it was possible for an employer with an approved or pending labor certification to substitute another qualified individual in the place of the original beneficiary. This practice will end as of July 16, 2007 for all pending cases, whether filed under the new PERM system or pre-PERM. This prohibition will not apply to cases in which a substitution has been approved before July 16, 2007 or for which the request is "in progress" as of that date.
Another new provision institutes an expiration date for approved labor certifications. Previously, an approved labor certification did not expire. Under the new rules, labor certifications will expire after 180 days if the employer fails to file an Immigrant Visa Petition (I-140) within that timeframe. For any labor certifications already approved by July 16, 2007, the 180-day expiration period will begin on July 16, 2007.
Payment of legal fees
Additionally, the regulation will forbid an employee beneficiary from paying the legal fee and associated costs for a labor certification in which an attorney represents both the employer and the beneficiary. Individuals may pay legal fees for separate representation, but any costs related to the labor certification must be borne by the employer. There is a narrow exception for cases involving a third party making the payment, for whose benefit the worker would be performing work, based on an established business relationship with the employer. Note that the regulation only applies to the labor certification process, not applications or petitions filed with U.S. Citizenship and Immigration Services, such as the Immigrant Visa Petition (I-140) filed on the basis of an approved labor certification.
These new provisions are likely to be subject to legal challenges (lawsuits) in the coming months.
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