News Update - May 19, 2007

By Alan Lee, Esq.^†‡

Labor Certification Substitutions Barred (Effective July 16, 2007) and Validity Limited to 180 Days

On May 17, 2007, the U.S Department of Labor published its final rule affecting several facets of labor certifications in the Federal Register. Vol. 72. No. 95 at page 27903. The much-anticipated final rule, effective July 16, 2007, bars labor certification substitution (the sale, barter or purchase of labor certification applications by all individuals and entities). The rule provides that employers must bear all costs of preparing, filing and obtaining labor certification including attorney’s fees with an exception for third party contracts in existence when the labor certification is filed (where there is an existing business relationship between the employer and a third party and the work to be performed will benefit that third party). This means an employer may not receive remuneration from an alien or withhold or reduce an alien’s wages to cover fees. Aliens may still retain and pay their own attorney’s fees for any other representation.

The final rule does not affect substitutions approved by the Department or DHS prior to the July 16, 2007 effective date or substitution requests in progress as of that date.

Labor certifications approved on or after July 16, 2007 will be valid for 180 days. Employers will have 180 days from the labor certification approval to file form I-140 with the USCIS. This rule applies to labor certification applications filed under PERM and the pre-existing labor certification process. Employers with approved labor certifications are on notice that those certifications are only valid for the alien named on the original application. Labor certifications approved prior to the effective date of July 16, 2007 will expire 180 calendar days from that date unless filed with the DHS to support an I-140 petition prior to expiration.

† The author is a 26+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

‡ This article © 2007 Alan Lee, Esq.

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The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.