New rule with respect to permanent labor certification
The U.S. Department of Labor Employment & Training Administration, on May 17, 2007, released a final rule with respect to the permanent labor certification program. The rule becomes effective July 16, 2007 and drastically changes policies with respect to: 1) the substitution of alien beneficiaries, 2) the validity period of approval labor certifications, and 3) the processing of, and who can pay for, the costs associated with labor certification applications.
Substitution
- This regulation will prohibit all substitutions of alien beneficiaries on labor certification.
- Certifications are valid only for the alien named on the original application, and no substitutions will be allowed on pending or submitted applications.
- These changes do not affect substitutions approved by the U.S. Citizenship
and Immigration Services ("USCIS") prior to July 16, 2007, or substitution requests
in progress with USCIS as of July 16, 2007.
Validity Period
- All certifications must be filed with USCIS within 180 calendar days.
- All permanent labor certifications approved on or after July 16, 2007 will expire 180 calendar days after certification, unless filed prior to expiration in support of a Form I-140 petition with USCIS.
- All certifications approved prior to July 16, 2007 will expire within 180
calendar days of July 16, 2007, unless filed in support of a Form I-140 petition
with USCIS prior to the expiration date.
Ban on Sale, Barter, Purchase and Certain Payments
- Employers must pay all costs associated with preparing, filing and obtaining
labor certification approvals.
- This rule prohibits sale, barter and purchase of applications and approved
labor certifications.
- Employers cannot reduce the wages, salary or benefits of an alien named
on the application for any expenses related to the preparation and filing
of the application.
- This rule also prohibits certain payments to employers in compensation
or reimbursement for costs incurred to obtain labor certification.
- This rule does not prohibit payment by the employee of costs beyond those
that are exclusively the employer's-for example, payment of the alien's attorneys'
fees or other costs attributed solely to the alien, to represent the alien's
interests.
- This ban applies to all transactions on or after July 16, 2007 regardless
of when the application was filed.
Should you have any questions or concerns regarding these developments, please
do not hesitate to contact our office to discuss further.
POSTED: MAY 21, 2007
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