The DOL final rule prohibiting substitution of foreign workers on already approved labor certification applications was published on May 17, 2007. Prior to this rule, an employer could substitute or change the identity of the originally intended beneficiary on any application for permanent labor certification as long as the substituted beneficiary satisfied the experience and education requirements as of the priority date on the labor certification application. The new rule bars beneficiary substitutions, and will be effective for any I-140 substitution requests submitted after July 16, 2007. Substitution requests submitted prior to July 16 will be accepted for processing.

In addition to prohibiting substitution of one beneficiary into another beneficiary's labor certification application, the rule will also limit the validity period of labor certifications and add language regarding the payment of costs for obtaining the certification. Under the new rule, an approved labor certification will be valid only for 180 days. As a result, an approved labor certification granted on or after July 16, 2007 expires if a Form I-140 petition has not been filed within 180 calendar days of the date the DOL granted certification. Labor certifications granted before July 16, 2007, will expire if a Form I-140 petition has not been filed within 180 calendar days of July 16, 2007 (January 12, 2008).

The new rule further requires that the petitioning employer, and not the beneficiary, pay the costs associated with filing and obtaining an approved labor certification application, including the payment of attorney's fees when the same attorney represents both the alien beneficiary and the employer. The employer is also prohibited from receiving any payment as an incentive or inducement to filing the labor certification application. On a related note, the rule will also prohibit the sale, purchase and barter of all labor certification applications, for either the Application for Permanent Employment Certification (Form ETA 9089) or the Application for Alien Labor Certification (Form ETA 750).

The rule also gives DOL authority to debar employers, attorneys and agents from filing labor certifications if DOL determines that certain violations have occurred, including sale or barter of an approved labor certifications, willful provision of false or inaccurate information in a labor certification, fraud, or a pattern and practice of failure to comply with the terms of a labor certification application. The rule specifies that a debarment action may be brought up to six years after the labor certification at issue was filed, and a party may be debarred from filing labor certifications for up to three years.

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