Visa Lawyer Blog
Advance copy of final rule, scheduled for publication on 5/17, regarding prohibition of substitution of aliens on labor certification applications, limited validity period for labor certifications, and payment of costs of obtaining the certification.
So what is in the regulations:
1. The regulation prohibits the practice of substituting beneficiaries in labor certification cases. This prohibition will not affect any substitutions that are approved either by the DOL or the USCIS prior to the effective date of the regulation (July 16, 2007). Additionally, the explanation of the regulation states that the prohibition does not apply to substitution requests that are in progress as of July 16, 2007.
2. The regulation bans improper commerce and payment for labor certifications. It bans the sale, barter, or purchase of labor certifications. Employers cannot seek or receive payment of any kind for activity related to the labor certification. This includes payment of the employer’s attorney fees and costs.
3. Under current rules, a labor certification (LC) does not have an expiration date. Under the new regulation, an LC will expire after 180 days if no I-140 is filed to proceed with the case. For labor certifications approved on or after July 16, 2007, the I-140 petition must be filed within 180 days of the LC approval. For LCs that are or were approved before July 16, 2007, the I-140 petition will have to be filed within 180 days of July 16, 2007.
Fortunately, likely due to the comments on the earlier proposed DOL regulation, the 180-day provision is a change from the initially-proposed, much shorter timeframe of only 45 days.
It applies to all other labor certifications, whether pending or approved as of July 16, 2007, and whether filed under PERM or the pre-PERM system.
We all have a two months adjustment period, so any questions on the above, feel free to email me at anytime.