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|USCIS announces new procedures for employers in response to new DOL rule eliminating substitutions on Labor Certifications
|May 24, 2007
United States Citizenship and Immigration Services (USCIS) is introducing
new procedures for filing a Petition for Alien Worker (Form
I-140) that requires
an approved labor certification application. These procedural changes are in
response to the Department of Labor's (DOL) final rule, Labor Certification
for the Permanent Employment of Aliens in the United States; Reducing the
Incentives and Opportunities for Fraud and Abuse and Enhancing Program Integrity,
published in the Federal Register on May 17, 2007. The DOL rule takes effect
on July 16, 2007. The immigrant visa classifications that generally require
an individual labor certification include members of professions holding advanced
degrees or aliens of exceptional ability (EB-2); and skilled workers, professionals
and other workers (EB-3).
The DOL rule will significantly impact the filing of Form I-140 petitions
with USCIS because it:
Requests for Labor Certification Substitution filed with USCIS prior to
the Effective Date of the DOL Final Rule
- Prohibits substitution of alien beneficiaries on any permanent labor certification application after the application has been filed with DOL.
- Establishes a 180-day time period within which a DOL-approved labor certification must be filed with USCIS in support of a Form I-140 petition in order to remain valid.
- Requires that any labor certification approved by DOL prior to July 16, 2007 be filed with USCIS in support of an I-140 petition within 180 days after the effective date of the DOL final rule in order for the certification to remain valid.
USCIS will accept and adjudicate Form I-140 petitions that request labor
certification substitution and that are filed with USCIS prior to July
16, 2007. USCIS has, in a separate notice, announced that Premium Processing
(adjudication in 15 days) for such petitions will no longer be available
as of May 18, 2007. USCIS will decide those cases based on procedures
outlined in the March 1996 DOL Delegation Memorandum of Understanding,
1 to include the adjudication of any relating motions to reopen or reconsider,
or an appeal (Form I-290B) by the Administrative Appeals Office (AAO).
USCIS will reject all Form I-140 petitions according to the current practice and procedures, that require an approved labor certification that are filed without the original labor certification unless the original labor certification was previously filed in support of another Form I-140 petition or a duplicate labor certification is being requested by the petitioning employer.
Substitution Petitions filed on or after the Effective Date of the DOL Final
USCIS will reject all Form I-140 petitions requesting labor certification
substitution that are filed on or after the effective date of the DOL rule.
USCIS will deny any petitions that are accepted in error when it discovers
that the alien beneficiary on the Form I-140 petition is not the same as the
alien named on the labor certification.
Validity Period for a DOL-Approved Labor Certification:
The DOL rule creates a validity period for those labor certifications that
are approved prior to the effective date of the rule, as well as a validity
period for labor certifications approved on or after the effective date
of the rule. Employers must file an approved labor certification in support
of a Form I-140 with USCIS within the applicable validity period established
by DOL. USCIS will reject all Form I-140 petitions that require an approved
labor certification if the validity period of the labor certification application
has expired. USCIS will deny all petitions that are accepted in error when
it discovers that the petition was filed with an expired labor certification.
In case: USCIS will be continuing to acknowledge amended or duplicate
Form I-140 petitions that are filed with a copy of a labor certification
that is expired at the time the amended or duplicate Form I-140 petition
is filed, only if the original approved labor certification
was filed in support of a previously filed petition within the labor certification's
validity period. In instances where the amended I-140 petition is requesting
a different visa classification for the same alien beneficiary or where
the previously filed Form I-140 petition has been determined to have been
lost by USCIS or DOS, then such filings may occur when:
- A new Form I-140 petition is required due to successor-in-interest,
- The petitioning employer wishes to file a new petition for the same alien beneficiary subsequent to the denial, revocation or abandonment of the previously filed petition, and
- The labor certification was not invalidated due to material misrepresentation
or fraud relating to the labor certification application.
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