The Department of Labor published a Final Rule in the Federal Register effective as of July 16, 2007 which introduces significant changes in the Labor Certification program in a continuing effort to reduce “fraud and abuse” in the program. The most important provisions of the new rules are the following:
Substitution of alien beneficiaries will no longer be allowed.
Approved Labor Certifications must be filed along with an I-140 Immigrant Visa Petition with the Immigration Service within 180 days of approval (previously, Labor Certifications were valid indefinitely as long as the position remained available without a time limit).
The sale, barter, or purchase of an approved Labor Certification is prohibited (note: we were unaware that there was a market for the “sale, barter, or purchase of an approved Labor Certification”!)
Employers must pay all legal fees and recruiting costs incurred in the preparation, filing, and processing of a Labor Certification application and cannot transfer those costs to the alien beneficiary. However, the Department concedes that the alien beneficiary may legitimately incur costs including legal fees to represent his/her own interests in the process.
We will continue to evaluate the impact of these changes on pending and future cases and will confer with our clients to as we modify our practices and procedures to comply with the new rules.