The labor certification process has evolved because for aliens that are seeking permanent residence in the U.S. based on employment it is mandatory under the Immigration and Nationality Act, that the Secretary of Labor must certify that:
- 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.
Speculations are rife about the current employment certification procedure for non-U.S. citizens seeking permanent residence in the United States being susceptible to fraud and abuse. The U.S. Department of Labor (DOL) and others have alleged that a lot of employers take advantage of the gaps in the existing system, thus proving detrimental to the very purpose of labor certification process.
DOL took extreme care to formulate the final rule which fortified the program and improved its integrity, but these changes take a toll on the first step of the green-card process: the PERM Labor Certification Process. In this phase the employer has to test the labor market to establish that there are no qualified and willing U.S. workers to do the job that is the basis for the green card.
Major Provisions of The Final Rule
The major provisions of the rule, which took effect in July, 2007, are:
- Eliminate the current practice of substitution (which occurs when an employer replaces the alien named in the labor certification with another alien without losing their place in the processing line) on both permanent labor certification (PERM) applications and previously approved labor certifications
- Include procedures for Department of Labor debarment of any employer found to be acting fraudulently
- Expressly call for the prohibition of the sale, barter or purchase of permanent labor applications and certifications, and other related payments
- Ban sponsoring employers from recouping foreign workers’ costs, including those of legal counsel, related to preparing, submitting and obtaining a permanent labor certification
- Preclude fee collection through payroll deductions and other means, such as lump sum payments
Once the Secretary of Labor has approved the labor certification, the United States Citizenship and Immigration Services (USCIS) may approve petitions for alien workers, and the U.S. Department of State can issue permanent resident visas for qualifying foreign-born persons to work in the United States.
Effects of The DOL Final Rule
Repercussions of the DOL Final Rule on USCIS Premium Processing Service for Form I-140
The effects of the DOL final rule were felt immediately as the USCIS immediately terminated Premium Processing Service for Form I-140 petitions that requested labor certification substitution.
What is the USCIS Premium Processing Service?
The USCIS offers a Premium Processing Service which, for a fee, provides faster processing of certain employment-based petitions and applications. Specifically, USCIS provides 15 calendar days processing to those who choose to use this service or it will refund the Premium Processing fee and the relating case will continue to receive faster processing. Premium Processing Service guarantees that within 15 calendar days of receipt of a petition, USCIS will issue either an approval notice, a notice of intent to deny, a request for evidence or open an investigation for fraud or misrepresentation.
Information Cannot Be Modified
The DOL final rule mandates that the information contained in a labor certification application may not be modified after the labor certification application is filed with DOL. This includes the substitution of alien names on the labor certification. Beginning on July 16, 2007, USCIS no longer accepted Form I-140 petitions that were supported by labor certifications that were approved by DOL for an alien other than the alien beneficiary named on the labor certification application.
USCIS Instituted New Procedures In Response To DOL Final Rule
In response to the DOL’s final rule the USCIS instituted new procedures for filing a Petition for Alien Worker (Form I-140) that requires an approved labor certification application.
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).
Significant Impact on The Filing of Form I-140
The DOL rule significantly impacted the filing of Form I-140 petitions with USCIS because it:
- 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
Requests For Labor Certification Substitution Filed With USCIS Prior To The Effective Date of The DOL Final Rule
USCIS continued to accept and adjudicate Form I-140 petitions that requested labor certification substitution and that were 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 decided all those cases based on procedures outlined in the March 1996 DOL Delegation Memorandum of Understanding, including the adjudication of any related motions to reopen or reconsider, or appeals (Form I-290B) to the Administrative Appeals Office (AAO).
In accordance with current practice and procedures, USCIS will reject all Form I-140 petitions 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.
My Case Scenario
Kjell, a national of Sweden, is in the US on an H-1B visa as a civil engineer. He is working for a large company that builds highways and freeways. At his request the company has started the labor certification for him. As they were beginning the process an engineer from Peru for whom they had completed a labor certification last year, decided to leave to leave the company and take a position with a company back in his home town. The head of HR wants to know why they can’t just use that labor certification for you – you have the same job and the same qualifications.
Under the previous rules that would have worked out just fine. However with the changes made in 2007 the substitution of workers on an approved labor certification is no longer allowed. However, with the new PERM process it does not take as long to complete the labor certification process and get on to the next step.
Substitution Petitions Filed on or After The Effective Date of The DOL Final Rule
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 establishes 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. That validity period has been set at 180 days from approval. 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.
USCIS will continue to accept 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.
These changes were a big step for DOL. Over a period of several years the DOL had noted a growing concern over the fraud and abuse that the labor certification process had succumbed to. These concerns with the integrity of the program were found to be true with the rash of recent high-profile criminal prosecutions by the U.S. Department of Justice (DOJ). These criminal prosecutions reinforced the view that the ability to substitute alien employees on the labor certification had made the labor certification itself a very marketable commodity by unethical employers, attorneys and agents. With the continued difficulty that aliens faced in getting permanent residence, aliens were willing to take the risks involved with the substitution process.
The DOL also believes that the marketability of the labor certifications was increased by the fact that the labor certification did not have an expiration date, allowing employers to use them for years after they were approved. By limiting the ability to substitute employees and the period of validity of labor certifications to 180 days, the DOL hopes to finally put a stop to these fraudulent practices.
In the 2-3 years following the adoption of the final rule DOL has noted success in achieving its primary goal of stopping the fraud and abuse in the program. With the PERM Labor Certification Process significantly reducing the processing times for those employers that need to file a new application the substitution process is no longer needed. As our experience has borne out, the lengthy processing times for green card labor certification is a thing of the past. Since substitution is no longer necessary to accommodate long wait times, the DOL believes there is no longer a compelling reason to allow the practice.
With the PERM Labor Certification process working well, and with the timely processing of I-140s by the USCIS, we here at VisaPro believe that the DOL’s new rule has not adversely impacted the employment based immigrant visa process. We embraced these changes and have made them work for our clients.
Contact VisaPro if you have any questions regarding any type of employment based and family based petitions as well as PERM and naturalization process. Our experienced attorneys will be happy to assist you.
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