Comment on Labor Substitution Regulation by April 14, 2006
Posted Apr 07, 2006
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The U.S. Department of Labor (DOL) has proposed a regulation to end the labor substitution process. The deadline for submitting comments on this proposed regulation is April 14, 2006. Details can be found in our MurthyBulletin articles DOL Proposes Elimination of LC Substitutions and Other Changes (Feb 17, 2006), and FAQs on the LC Substitution Proposed Regulation (Feb 24, 2006), available on MurthyDotCom.
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Send Comments before April 14, 2006 for DOL Review
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Any person, firm, or organization may send comments on this regulation. The comments most likely to make a difference are those that are logical and based on legal and policy concerns that resonate with the DOL. Individuals may want to encourage their employers to respond, particularly if the employer utilizes the labor substitution process, or would do so, if the opportunity were to arise. Most employers would like to have the option of substituting beneficiaries in a labor certification, if the original employee / beneficiary were to leave the company before finalization of the green card case. This would save the employer both time and money, and would help the employer to attract other strong, experienced candidates in a labor market that is tight for highly-skilled professionals.
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The directions for submitting comments to the DOL are included in our FAQ article mentioned above. Those who wish to respond must do so before the deadline, preferably well in advance, so that their comments are taken into account by the DOL in releasing the final regulation.
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Future of Labor Substitution Process
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The regulation would end the labor substitution of beneficiaries with previously-approved labor certifications by making the labor valid for only 45 days, also by no longer allowing the substitution of beneficiaries on pending labor certification cases. In other words, the DOL is attempting to limit the labor substitution process by drastically changing the timeframes for the validity of labor certifications. Currently, labor certifications are valid indefinitely. The proposed regulation would limit them to 45 days. That is, it would become necessary to file the I-140 petition within 45 days of the labor certification approval. This would, for all intents and purposes, rule out most substitutions after the labor certification is approved.
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Deadline to Submit Comments - NOT Deadline for Filing Labor Substitutions
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The April 14, 2006 date is only the deadline for submitting comments to the DOL. It should not be mistaken for a deadline for labor substitution cases. The regulation could be finalized, however, at any time following the review of the comments and the publication of a final regulation. How long this might take, and the final content of the regulation, cannot be ascertained until the DOL reviews all comments and responds to them, either generally or specifically.
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Conclusion
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As the labor substitution process has an uncertain future, employers thinking of filing bona fide, legitimate labor substitution cases may want to move forward at the earliest. Those employees or beneficiaries with the chance for genuine labor substitution cases should also take the necessary steps to file their labor substitution cases, to avoid losing this opportunity.