Labor Certification Substitution Regulation Update
Posted Feb 10, 2006
©MurthyDotCom
As regular MurthyDotCom and MurthyBulletin readers are aware, the U.S. Department of Labor (DOL), was working on a regulation to end the labor substitution process. This was reported in our August 26, 2005 MurthyBulletin article, Proposal to End LC Substitution and Require Prompt I-140 Filing, available on MurthyDotCom. Action on this regulation stalled, apparently in part due to strong opposition. It has come to our attention, however, that the regulation completed the Office of Management and Budget review process on February 2, 2006.
©MurthyDotCom
This does not mean that there is any change at this time - only that the likelihood of change has increased. The regulation first will have to be published as a proposed regulation, with a comment period. It is not final until it undergoes publication and comment, and then is published in final regulation form. Regulations often undergo change following public comments, which must be reviewed and considered.
©MurthyDotCom
As before, only an abstract currently is available. This indicates that, as part of a series of changes aimed at reducing fraud, the DOL wishes to eliminate the labor substitution process and institute a 45-day deadline to file I-140 petitions following labor certification approval. What would happen to pending labor substitution cases has not been revealed.
©MurthyDotCom
We at the Murthy Law Firm addressed our concerns and opposition to these changes in our previous article, cited above. Our opposition stands. We deplore fraud and abuse of the immigration process. However, wholesale elimination of the substitution process, and the institution of an unrealistic timeframe for filing the I-140 (after the petitioner and beneficiary may have waited years for DOL action), are simply tools that are too blunt for the purpose. Employers often have to wait a few months to file their year-end tax returns, sometimes after extensions, in order to meet the financial ability to pay test to obtain I-140 approvals. Providing only a brief timeframe for the I-140 filing seems patently unjust.