The U.S. Department of Labor published a final rule that will improve program
integrity and close opportunities for fraud in the employment certification
of non-U.S. citizens for permanent residence in the United States.
The final regulation eliminates the current practice of substitution of
alien beneficiaries on both permanent labor certification applications and
approved labor certifications. Procedures for Department of Labor debarment
of any employer found to be acting fraudulently have been included in the
rule, as well. Provisions also expressly call for the prohibition of the
sale, barter or purchase of permanent labor applications and certifications,
and other related payments.
Today's rule ends substitution, which takes place when employers replace
one alien applicant with another without losing their places in the processing
line. This new prohibition applies to alien beneficiaries on permanent
labor applications or certifications, including those pending review in
the Labor Department's Backlog Processing Centers. The regulation also
bans sponsoring employers from recouping foreign workers' costs, including
those of legal counsel, related to preparing, submitting and obtaining
a permanent labor certification. In addition, this provision precludes
fee collection through payroll deductions and other means, such as lump
Under the Immigration and Nationality Act, the secretary of labor must certify
Once these certifications are made, the U.S. Department of Homeland Security
may approve petitions for the U.S. Department of State to issue permanent
visas for qualifying foreign-born persons to work in the United States.
- There are not sufficient workers able, willing, qualified and available to perform the work, and
- The employment of the alien will not adversely affect the wages and working conditions of U.S. workers in similar occupations.