ELIMINATION OF LABOR CERTIFICATION SUBSTITUTIONS LOOKS IMMINENT
February 6, 2007

Under current law, an employer may use an approved permanent labor certification on behalf of an employee other than the one listed in the labor certification. However, the newly substituted employee must have been qualified for the position as described in the labor certification at the time that the case was originally filed.

In an attempt to eliminate fraud and abuse of the labor certification process, the Department of Labor (DOL) in February 2006 proposed a rule that would eliminate labor certification substitutions; make certified labor certifications valid for only 45 days from the time of certification to the time of filing of the I-140 Petition with the USCIS; prohibit the sale, barter, and purchase of the labor applications and certifications and other related payments; etc.

On January 26, 2007, DOL submitted to the Office of Management and Budget (OMB) the final version of this rule. OMB generally has 90 days to review the proposed regulation to approve it, send it back for revisions, or reject it. Once OMB has approved a regulation, it goes back to DOL for signature, and to the Federal Register for publication and then takes effect. While there is no way to tell how long OMB will take, or what the results of its review will be, the immigration-related regulations usually tend to take the full 90 days. Nonetheless, it could be less.

While the copies of regulations in process can no longer be obtained prior to their submission for publication, we strongly believe that substitutions will indeed be eliminated. It is not clear, however, what, if any, of the other proposals survived to final rule.

It is, therefore, very important that all labor certification substitutions are filed immediately before the proposed rule becomes the law. We strongly urge you not to delay the filing of the labor certification substitutions any further as that opportunity may very soon be no longer available.