Labor Certification : Filing Reminder Posted May 25, 2007 ©MurthyDotCom MurthyDotCom and MurthyBulletin readers were advised May 16, 2007 of the finalization of a Department of Labor (DOL) regulation. The regulation terminates the labor substitution process and is discussed in more detail in our May 16, 2007 NewsFlash! LC Substitution Elimination Reg Effective July 16, 2007. In addition to the elimination of substitution, the regulation also changes the rules regarding who can pay for a labor certification and the related advertisements. Once the regulation becomes effective, on July 16, 2007, and unless it is successfully challenged, legal fees and related costs associated with filing a labor certification will be the responsibility of the employer. This possibility was reported in our March 9, 2007 MurthyBulletin article, LC Substitution Regulation Restricts Payment for LCs, available on MurthyDotCom. ©MurthyDotCom Certain Payments are Employer's Expenses under PERM ©MurthyDotCom Under the PERM labor certification regulation, employers are required to disclose and specify any payment of any kind for submission of the labor certification application. The DOL views the provisions in the new regulation to be the logical outgrowth of this portion of the PERM regulation. Under the regulation, the DOL views the payment of the legal fees for the labor certification as being in the same category as an impermissible fee for hiring the beneficiary. The DOL considers the fees and costs (legal and advertising) related to labor certification to be purely the responsibility of the employer. ©MurthyDotCom Employer Must Pay even with Dual Representation ©MurthyDotCom The DOL position on legal fees and costs remains unchanged, even when there is a dual representation arrangement. Dual representation, which is common in immigration cases and is the standard in many firms, means that the attorney represents both the employer and the foreign national beneficiary towards the goal of helping with processing the PERM. Even in this situation, where the attorney equally represents both parties, the DOL views the legal fees to be the employer's expense that cannot be borne even in part by the foreign national. ©MurthyDotCom Employee Allowed to Hire Separate Attorney ©MurthyDotCom Under the regulation, a foreign national can pay his/her own separate attorney. This essentially seems to mean that, if one wants to hire and pay an attorney to advise him or her along the way, in addition to the attorney working on the labor certification, this may be done at the employee's expense. In most other cases, the employer must bear these costs. ©MurthyDotCom Effective Date of New Fee Payments - July 16, 2007 ©MurthyDotCom The regulation will not be effective until July 16, 2007. Thus, until that time, employers and foreign nationals are free to determine the allocation of legal and related costs for labor certifications as they see fit, as it was before this regulation became enforceable. Therefore, it may make sense for many to start their cases and cover the costs prior to July 16, 2007. ©MurthyDotCom DOL Processes Impacted by Employer Paying Fees ©MurthyDotCom The regulation covers the labor certification, only. It does not impact payment matters for the I-140 petition or the Adjustment-of-Status portions of a case. The USCIS has not taken a position like the DOL in terms of requiring employers to pay all the filing fees, other than the USCIS training fees in connection with filing H1B petitions. Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved
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