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Application for Alien Labor Certification: Update on Rules
Released Date: September 3, 2007

Dear Client,

The Department of Labor has released a final rule, amending the existing regulation regarding the labor certification process. The new rule's intention is to reduce the perceived incentives and opportunities for fraud and abuse within the labor certification program.

The provisions in the rules apply to labor certification applications filed under both the Program Electronic Review Management (PERM) program regulation effective March 28, 2005, and prior regulations implementing the permanent labor certification program.

Among its provisions are significant changes regarding: (1) substitution of alien beneficiaries; (2) the validity period of an approved labor certification; and (3) the payment of costs associated with labor certification applications.


Substitution

The new rule prohibits the replacing, or substitution, of one alien beneficiary on permanent labor certification applications for another. This applies to all pending and approved labor certification applications that have not been filed with the United States Citizenship and Immigration Services (USCIS) as part of an Immigration Petition for Alien Worker (Form I-140).

The DOL will begin rejecting requests for substitutions filed after July 16, 2007. The rule does not apply retroactively to labor certifications where substitutions have been approved by the DOL and filed with USCIS (with an I-140 petition) prior to the July 16th effective date, even if the I-140 is still pending after July 16th.


Validity Period

The new rule provides a 180-day validity period for approved labor certifications. This means that employers will have 180 calendar days within which to file an approved permanent labor certification in support of a Form I-140 Immigrant Petition for Alien Worker (Form I-140) with the USCIS before the labor certification expires.

Please note that if the labor certification application is approved on or after July 16, 2007, it expires 180 calendar days from the day the DOL granted the certification. However, if the certification was granted before July 16, 2007, then the certification's validity period is 180 days from July 16, 2007.

It is therefore essential that all of the documentation required for the I-140 Petition be complete and available in a timely manner. The key documentation consists of:

1. The Employer's financial documentation, generally the employer's tax returns from the year of filing to the present date. Additional documentation may be required if this initial documentation does not satisfy USCIS requirements.

2. The foreign national's income tax returns and Forms W-2 for his/her period of employment with the sponsoring employer.

3. Letters of experience from the foreign national's previous employers confirming that the foreign national met all the requirements stated on the labor certification application at the time of filing.

Our recommendation and preference is to have this documentation in our files prior to commencing the recruitment phase of the labor certification process.


Costs

The rule also requires employers to pay the costs of preparing, filing and obtaining labor certifications. An employer's transfer to the alien beneficiary of the employer's costs incurred in the labor certification or application process is strictly prohibited. This means that the employer must pay all costs related to the labor certification application itself, including attorney fees and all the advertisements costs.

The rule makes clear a foreign national may pay his/her own "legitimate costs" in the permanent labor certification process, including attorneys' fees for his/her representation. However, beyond that, there is no clarification as to what "legitimate costs" refers.

In view of the foregoing, any employer sponsoring a foreign national for labor certification should be prepared to bear all the costs of the same.


Miscellaneous

In furtherance of the DOL's efforts to reduce fraud in the labor certification process, the revised regulations also include provisions addressing suspension and debarment from the labor certification program where the DOL finds involvement in fraud or willful misrepresentations. Furthermore, the new rules provide notice that knowingly and willfully furnishing false statements is a federal offense punishable by fines and/or imprisonment, as well as additional penalties.

We will be working with our clients to ensure compliance with these new rules, and will continue providing you with updates as we receive them. 

Questions and Comments:
If you have any questions or would like more information regarding this advisory, please do not hesitate to contact the team at Azarmehr & Associates, P.C. Please send your questions to: contact@mpalaw.net
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