SUMMARY:  New regulations passed by the U.S. Department of Labor significantly change rules applying the Labor Certification process.  Most notably, these changes include:

·         180 Day / January 11, 2008 Deadline:  Employers now have only 180 days to file a visa Petition after a case is certified by the U.S. Department of Labor.  Cases certified prior to the July 16^th effective date expire after January 11, 2008.

·         Employers Must Pay Labor Certification Costs: Employers are now required to pay “all costs” of the Labor Certification process, including legal fees and other costs, when sponsoring workers.

·         Substitution of Workers Eliminated:  Employers may no longer change the beneficiary of a Labor Certification after it is filed.

Read on for a more detailed discussion of the changes:

On May 17, 2007, the U.S. Department of Labor (DOL) published new regulations applicable to all Labor Certification cases ((“New Regulations” / 72 FR 27903).  The New Regulations, effective July 16, 2007, will prohibit the sale, barter, or trade of Labor Certification Applications; eliminate substitution of beneficiaries, require payment of all labor certification related costs by the Sponsoring Employer; and establish a 180-day deadline for the filing of the Petitions for Alien Worker after the case is certified by DOL.  These sweeping changes required Employers and Employees alike to review their Labor Certification cases immediately and take necessary actions.  Employers and Employees should seek the advice of a qualified and experienced immigration lawyer for any specific case or set of facts.  A more detailed description of the changes include:

 Elimination of Labor Certification Substitution:  Under current law and policy, the US. Department of Labor (“DOL”) and U.S. Citizenship and Immigration Service (“USCIS”) permit sponsoring employers to substitute a qualified beneficiary into a pending or approved Labor Certification.  However, effective July 16, 2007, substitutions sponsored employees will be eliminated under the new regulation.  The USCIS and DOL have indicated that they will accept substitutions that qualify under the current law and policy that are filed prior to the effective date of the regulation.  The USCIS will not, however, permit premium processing of Substitution requests filed with that agency.

Sale, Barter, or Trading of Labor Certifications Prohibited:  The sale, barter or trade of Applications for Labor Certification have been closely linked with fraudulent practices.  Therefore, the New Regulations clearly prohibit the sale, barter or purchase of a Labor certification by anyone.   Further, Employers must not seek or receive payment or reimbursement of any kind for any activity related to the Labor Certification.  Any evidence of these prohibited activities could result in investigations debarment, and denial of the Labor Certification and possible criminal liability.

Employers Required to Pay for All Costs of Labor Certification including Attorneys Fees:  Simply put, the New Regulations require Sponsoring Employers to pay all Labor Certification related costs including attorney’s fees and labor certification related expenses with few exceptions.  Employers may not be reimbursed directly or through other means (wage or benefits concessions, kickbacks, bribes, tributes, or even free labor).  Representation of the Employer in the Labor Certification process is practically and ethically unavoidable in most or all cases.  Therefore, Employees will rarely, if ever, be permitted to pay any of the costs associated with the process.  This restriction does not currently apply to the filing of later stages of representation such as the Petition for Alien Worker or Adjustment of Status.  Employers and Employees are strongly cautioned to avoid representation by attorneys or non-attorneys that claim otherwise.  Litigation against the DOL is being considered by attorney’s groups.  If any employer is willing to be a named plaintiff in such a suit (without any legal charge), please notify the Firm as soon as possible.  Issues regarding cases started prior to the effective date must be considered on a case by case basis.  Employers are recommended to review and consider the impact of the new law on any existing employee reimbursement arrangements related to or impacted by the change in law (terms and enforceability of agreements already in place could be affected).

180 day Deadline for Filing of the Petition for Alien Worker – January 11, 2008 Deadline for Certified Cases:  Approved Labor Certification applications have historically been a valid indefinitely and did not have any expiration date.  Therefore, in the past, Employers were not required to file a Petition for Alien Worker based on an approved Labor Certification within any specific timeframe.  The New Regulations now require filing of the Petition for Alien Worker within 180 days of the approval of the Labor Certification.  This applies to new and old cases.  Labor Certifications approved prior to the effective date of the New Regulations will become void if Employers do not file the Petition for Alien Worker within 180 days of the effective date, or by January 11, 2008.