A proposed rule issued by the Department of Labor (DOL) proposes to eliminate an employer’s ability to substitute alien beneficiaries on labor certification applications. In addition, the rule proposes a 45-day validity period for employers to use the labor certification to support an immigrant petition. Further, the rule prohibits the alien employee from paying (directly or indirectly) attorney’s fees and other costs associated with the labor certification application. Finally, the rule contains provisions to promote program integrity and enforcement.
Substitution
DOL has historically taken the position that the company “owns” the labor certification and can use it for any qualified beneficiary. Therefore, DOL has permitted the employer to substitute another qualified beneficiary while the application is pending or when filing an immigrant petition. This substitution has been permitted because of the length of time it takes to process labor certifications and immigrant petitions. The proposed rule eliminates this substitution based on its supposed potential for fraud and abuse. Substitution would be eliminated as of the effective date of the rule and apply to all pending labor certification applications and approved certifications not yet filed with USCIS on the effective date of the rule. Thereafter, the employer would only be able to use an approved labor certification for a named beneficiary.
45-day validity
Currently, labor certifications are valid indefinitely. This rule imposes a 45-day validity period causing the labor certification to expire if an immigrant petition is not filed with USCIS within 45 calendar days of certification. All certifications approved prior to this rule’s effective date will expire within 45 days of the effective date of the rule, unless filed with USCIS in support of an immigrant petition.
Prohibited Payments
Regulations continue to eliminate alien subsidization of costs associated with employment of foreign national workers. This rule designates that attorney’s fees and costs related to preparing, filing, and obtaining permanent labor certification must be borne exclusively by the employer. It prohibits the alien beneficiary from paying or reimbursing these costs in any way.