LC Substitution Elimination Reg Effective July 16, 2007
Posted May 16, 2007
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The much anticipated U.S. Department of Labor (DOL) regulation terminating labor substitution cases will be published on May 17, 2007. We have reviewed an advance copy, which we summarize here for MurthyDotCom and MurthyBulletin readers. An important fact is that this regulation will not be effective for two months - not until July 16, 2007.
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Summary of the DOL Regulation
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The DOL regulation addresses a number of important areas, including labor substitution cases, expirations of labor certifications, and payments in connection with labor certifications, including attorney's fees and costs. A detailed analysis of the regulation will be provided at a later time. Most of our attorneys at the Murthy Law Firm will attend a meeting with DOL officials, including the Chief of the Foreign Labor Certification Unit, who are directly involved with this regulation at a May 16, 2007 AILA meeting and will seek further clarification of the regulation.
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Elimination of LC Substitution after July 16, 2007
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The regulation prohibits the practice of substituting beneficiaries in labor certification cases. This prohibition will not affect any substitutions that are approved either by the DOL or the USCIS prior to the effective date of the regulation (July 16, 2007). Additionally, the explanation of the regulation states that the prohibition does not apply to substitution requests that are in progress as of July 16, 2007.
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It applies to all other labor certifications, whether pending or approved as of July 16, 2007, and whether filed under PERM or the pre-PERM system.
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Expiration of Labor Certifications : 180-Day Rule
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Under current rules, a labor certification (LC) does not have an expiration date. Under the new regulation, an LC will expire after 180 days if no I-140 is filed to proceed with the case. For labor certifications approved on or after July 16, 2007, the I-140 petition must be filed within 180 days of the LC approval. For LCs that are or were approved before July 16, 2007, the I-140 petition will have to be filed within 180 days of July 16, 2007.
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Fortunately, likely due to the comments on the earlier proposed DOL regulation, the 180-day provision is a change from the initially-proposed, much shorter timeframe of only 45 days.
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Prohibition on Improper Payment for LC Filings
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The regulation bans improper commerce and payment for labor certifications. It bans the sale, barter, or purchase of labor certifications. Employers cannot seek or receive payment of any kind for activity related to the labor certification. This includes payment of the employer's attorney fees and costs. Individuals can pay for their own legal fees for separate representation, but the labor certification is regarded as the employer's cost. If there is dual representation, the employer must pay the attorney fees and related costs. This applies only to the labor certification stage. There is one exception to this for third-party arrangements, based upon an established business relationship with an employer. Examples are in the instance where there is a split appointment of a physician between a Veterans Affairs Medical Center and an affiliated university or where there is a union fund that defrays legal fees for members. Thus, these are very limited situations.