Department of Labor Issues Final Rule on Elimination of Labor Certification Substitutions

The Department of Labor (DOL) has released a Final Rule amending its regulations in a number of important areas, including labor certification substitution cases, expiration periods of labor certifications, and employer/employee payments in connection with labor certifications. The Final Rule goes into effect July 16, 2007. Below is a brief summary of the key changes:

Elimination of Labor Certification Substitution

Beginning July 16, 2007, employers will no longer be able to substitute employees in labor certification cases. Although not explicitly permitted in the regulations, DOL and U.S. Citizenship and Immigration Services (USCIS) had informally allowed employers to substitute an alien named on a pending or approved labor certification with another prospective alien employee. Labor certification substitution typically occurs while the permanent labor certification application is pending with DOL, or at the time of filing a Form I-140 petition. The Final Rule adds an explicit prohibition to this practice. The changes do not affect substitutions that have already been approved by DOL or USCIS, and it is unclear at this time whether the rule bars substitutions that are pending at the time the rule goes into effect. We expect further clarification on this issue from DOL in the coming weeks.   

180-Day Expiration Date Set for Labor Certifications 

Under current rules, a labor certification is valid indefinitely. Under the Final Rule, a labor certification will expire 180 days after the date of certification. This rule applies to labor certifications approved on or after July 16, 2007. In addition, labor certifications approved prior to July 16, 2007, will only remain valid for 180 days beyond the rule's effective date, or January 15, 2008. All labor certifications approved prior to July 16, 2007, must be filed with the USCIS I-140 petition no later than January 15, 2008. Employers will need to be ready to file I-140 petitions once the DOL certifies the permanent labor certification application.

Employers Responsible for Labor Certification Costs

The Final Rule expressly prohibits the sale, barter, or purchase of labor certification applications and certifications. In a major change, the rule also expressly prohibits employers from receiving compensation or reimbursement of any kind from employees for any activity related to obtaining permanent labor certification, including payment of attorneys' fees and recruitment costs. Employees can pay for their own legal fees for separate representation, but the labor certification is regarded as the employer's cost. In situations where the attorney is representing both the employer and the employee, the employer must pay the attorneys' fees and related costs (including recruitment costs). The Final Rule also prohibits an employer from reducing the wages, salary, or benefits of an alien named on a labor certification application for any expense related to the filing of the application. This ban applies to all transactions on or after July 16, 2007.

We encourage all employers who are considering substituting a employee into a pending or approved labor certification application to contact us immediately so that we can make a proper assessment before the rule's effective date. We also encourage you to contact us regarding any immigration agreements you may have with employees, or if you would like additional guidance on how these proposed changes might affect your workplace. We expect further clarification on this Final Rule from DOL and will send you updated information as it develops.