Jackson & Hertogs has received an advance copy of a Notice of Proposed Rule Making (NPRM) submitted by the U.S. Department of Labor (DOL). This proposed rule will be published in the Federal Register next week. Key items being proposed are as follows:

1. Elimination of labor substitutions. This is the practice where an employer substitutes an employee into an approved labor certification which was originally filed on behalf of another employee. This typically occurs when the original beneficiary employee is no longer employed by the company or has immigrated on another basis and no longer requires the labor certification. Employers are able to take advantage of the monies and time spent in securing the labor certification by offering the same position to a similarly qualified employee. This process involves providing evidence that the substituted beneficiary met all of the requirements listed in the approved labor certification when the application was originally submitted. The proposed DOL rule, if passed, will eliminate this practice. 
2. Mandatory 45-day period in which to submit an Immigrant Visa Petition (I-140) based on an approved labor certification. Under the current rules, a labor certification is valid indefinitely, meaning that there is no set time period by which the immigrant visa petition must be filed after a labor certification is issued. Under the proposed rule, the employer would be required to submit its immigrant visa petition to U.S. Citizenship and Immigration Services (CIS) within 45 days of the labor certification being issued. Failure to file the petition within the time frame would result in invalidation of the approved certification.
3. Ban on the sale, barter and purchase of labor certifications. The DOL states that a "black market" has been created where employers or agents agree to broker labor certification applications on behalf of foreign nationals for a fee and that such arrangements are contrary to the basic tenets of the labor certification process.  It is currently unlawful for an employer to "sell" a labor certification. However, this proposed rule would eliminate the ability of a foreign national to pay for the processing of the labor certification case. I.e., under the current rules, a foreign national can be responsible for paying the attorneys fees for the labor certification process. Should this proposed rule becomes effective, employers would be barred from asking employees to incur some of the costs associated with the processing, including the practice of having employees "pay back" prorated amounts if they terminate their employment prior to receiving permanent residency status.
4. Debarment and Program Integrity. This section of the proposed rule would provide the DOL with authority to suspend action on any pending cases where the employer, agent or attorney is suspected of having committed fraud or willful misrepresentation or is named in a criminal indictment or information related to the permanent labor certification program. The DOL already has the ability to carry out such steps, but believes that the proposed rule clarifies this authority. Included in this section are the creation of a debarment provision aimed against fraudulent activities.

DOL's thrust in the proposed regulations is aimed at curtailing real and/or perceived fraudulent activities. However, it would appear that some of the proposals are much more far reaching than warranted. Employers seeking to file labor substitution cases are already required to demonstrate that there is a bona fide job opportunity and that the substituted foreign national is qualified for the position. The DOL's rule would punish legitimate and honest employers rather than serve to prosecute and root out fraudulent abusers of the labor certification system.

The rule's mandate to invalidate a labor certification if it is not submitted to the CIS within 45 days of issuance by DOL is perhaps the most troubling provision of the proposed rule, because there are so many factors outside the control of the employer.  First, the DOL is not consistently mailing out labor certification approvals on the date of adjudication. We have experienced several instances in the past six months where labor certifications were approved, but it took the DOL 2 weeks to 2 months to mail the certifications to the attorney of record.  Add to these DOL delays the uncertainty of postal delivery and an employer could easily lose the ability to use a labor certification before it ever had an opportunity to file the immigrant visa petition.  Should the employer or the foreign national be unreachable, and cannot sign the labor certification within the 45 days, then the employer and foreign national would forfeit the approval.  If the DOL wants to impose such a dire consequence then a much more reasonable period of time needs to be provided, to ensure that an approval is not forfeited without just cause.

As we stated at the beginning of this article, at this time, this is only a notice of proposed rule making - it is not in effect, and does not have any impact on cases currently in process at DOL or CIS. We will provide additional information as it becomes available and we will provide sample letters for our clients to use if they wish to submit comments to the proposed rules. The DOL must hear from the stakeholders in the labor certification program-i.e., they must hear from employers.

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