The Department of Labor (DOL) has amended its regulations regarding the acquisition and use of permanent labor certifications in order to reduce the incentives and opportunities for fraud and abuse in the permanent labor certification program.
The Department of Labor (DOL) has amended its regulations regarding the acquisition and use of permanent labor certifications in order to reduce the incentives and opportunities for fraud and abuse in the permanent labor certification program. The DOL's Final Rule makes a number of changes that will impact employers who use permanent labor certifications to employ immigrant aliens.
What is a permanent labor certification?
Federal immigration law requires that before the federal government may approve petition requests and issue visas to certain immigrant aliens to work permanently in the United States, the Secretary of Labor must grant the employer's petition for a permanent labor certification. In order to obtain a permanent labor certification, the employer must follow a process that includes filing a labor certification application with the DOL. The employer must demonstrate to the DOL that there are no U.S. workers able, willing, qualified, and available at the time of the application for a visa and admission to the United States and at the place where the alien is to perform the work. The employer must also demonstrate that the employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers. Following review of the permanent labor certification application, DOL will either certify or deny the application.
The approved labor certification is usually filed in support of a form I-140 petition and the DOL will review the labor certification to evaluate, among other things, whether the position being offered to the alien named in the petition is the same as the position specified on the labor certification and whether the employment qualifies for the immigrant classification requested by the employer.
How does the Final Rule impact this process?
For many years, DHS has had an informal practice of allowing employers to substitute an alien named on a pending or approved labor certification with another prospective alien employee, as an accommodation to employers due to the length of time it took to obtain a permanent labor certification or receive approval of the Form I-140 petition.
However, the new rule eliminates this practice. Specifically, it prohibits the substitution of alien beneficiaries on permanent labor certification applications and resulting certifications as of the effective date of the rule (July 17, 2007). This prohibition will apply to all pending permanent labor certification applications and to approved permanent labor certifications, whether the application was filed under the Program Electronic Review Management (PERM) program regulation effective March 28, 2005, or under prior regulations implementing the permanent labor certification program. This rule also clarifies the Department's ``no modifications'' policy for applications filed on or after March 28, 2005, under the new, streamlined PERM process.
Additionally, the Final Rule:
- provides a 180-day validity period for approved labor certifications; employers will have 180 calendar days within which to file an approved permanent labor certification in support of a Form I-140;
- prohibits the sale, barter or purchase of permanent labor certifications and applications;
- generally requires employers to pay the costs of preparing, filing and obtaining certification. Specifically, the rule strictly prohibits an employer's transfer to the alien beneficiary of the employer's costs incurred in the labor certification or application process.
- reinforces existing law pertaining to the submission of fraudulent or false information;
- clarifies current DOL procedures for responding to incidents of possible fraud; and
- establishes procedures for debarment from the permanent labor certification program.
If you have any questions regarding the impact of the Final Rule, or any other employment related immigration question, please contact Raazia Hall or any member of Ford & Harrison's Business Immigration Practice Group.