New DOL regulations affecting labor certifications

News Release from Jewell & Associates - May 17, 2007  Today the U.S. Department of Labor (DOL) published regulations, effective July 16, 2007, that affect labor certifications (the first step in the employment-based permanent residence, or “green card,” process). While the thrust of the new regulations is to preclude fraud and an underground market in labor certifications, several provisions are broadly written and thus will affect all employers who file labor certification applications.  Specifically, the regulations introduce three changes that will influence the permanent residence process:

  • Validity period established for approved labor certifications (“use it or lose it”) - Starting July 16, 2007, an approved labor certification, which until now had no expiration, will be valid only for 180 days. Labor certifications issued before July 16, 2007 will expire on January 11, 2007.  Labor certifications issued on or after July 16, 2007 will expire 180 days from the date of issuance.  If an approved labor certification is not used (i.e., not filed with USCIS in support of an I-140 immigrant petition) within its validity period, it will be forfeited.  This requirement to file the I-140 immigrant petition within 180 days of the issuance of the labor certification underscores the importance of taking the time to prepare the I-140 at the same time the PERM labor certification application is being prepared. Hastily preparing and filing a PERM application, only to discover later that the necessary I-140 supporting documents cannot be mustered within 180 days, is poor planning.  The best practice is to lay the groundwork for the I-140 petition before the labor certification recruitment begins.  That way, the I-140 is ready to be filed very soon after the labor certification is issued.
  • Substitution of employees no longer permitted – As of July 16, 2007, it will not be possible to substitute an employee into a labor certification that was originally filed on behalf of a different employee.  Companies with “spare” labor certifications, issued in the names of departed employees and never used, will not be able to request substitution of beneficiaries as of July 16, 2007.
  • Payment by employee of labor certification legal fees and costs prohibited - Finally, the most controversial part of the new regulations severely restricts the ability of an employer and employee to share the legal fees and costs associated with a labor certification application, and restricts the ability of the employer to seek reimbursement from the employee for those legal fees and costs.  Where the same attorney or law firm represents both the employer and the employee in a labor certification matter (as is normally the case), or represents the employer exclusively, the employer must bear all of the labor certification-related legal fees and costs and may not seek reimbursement from the employee in any form.  Seeking or receiving payment of any kind from the employee may subject the employer to the severe penalty of “debarment,” i.e., being prevented for a period of time from filing any labor certification applications.   The new regulations thus call into question the continued legality, as of July 16, 2007, of most typical repayment agreements that employers enter into with employees to encourage the employee to remain on the job for a period of time after green card sponsorship begins.  It would be advisable for employers to suspend the use and enforcement of such agreements as of July 16, 2007.  This controversial regulation may eventually be litigated and struck down, but until that occurs, the regulation must be regarded as law.

© Jewell & Associates 2007