Employer Services Advisory Bulletin
Immigration
Update: New Department of Labor Rules for Green Card Processing
and Increase in Filing Fees
By James
M. Mei
[June 2007]
Announced May 17 the U.S. Department of Labor (DOL or Department)
just amended its current regulations to enhance the employment-based
immigrant program integrity and reduce the incentives and opportunities
for fraud and abuse related to the permanent employment of aliens
in the United States.
Effective
July 16, 2007, this final rule:
-
Prohibits the substitution of alien beneficiaries on permanent
labor certification applications and resulting certifications.
-
Provides a 180-day validity period for approved labor certifications.
-
Gives employers 180 calendar days within which to file an approved
permanent labor certification in support of a Form I-140 Immigrant
Petition for Alien Worker (Form I-140 hereafter) with the Department
of Homeland Security (DHS).
- Prohibits
the sale, barter or purchase of approved permanent labor certifications.
- Requires
employers to pay the costs of preparing, filing and obtaining
a labor certification without any recoupment of costs from the
foreign worker. Specifically, an employer:
- may
not reduce or withhold the wages, salary or benefits of an
alien named on a labor certification for any expense related
to the preparation and filing of the application;
-
may not receive payment of any kind as an incentive or inducement
to file;
-
may not receive kickbacks or “free labor” as payment;
and
-
may also no longer make employer-employee agreements requiring
reimbursement if the employee leaves the company before a
specified time.
- States
that an alien may hire their own attorney and pay his or her own
legitimate costs in the permanent labor certification process,
including attorneys' fees for representation of the alien.
- Reinforces
existing law pertaining to the submission of fraudulent or false
information and clarifies current DOL procedures for responding
to incidents of possible fraud.
- Establishes
procedures for debarment from the permanent labor certification
program.
The
provisions in this final rule apply to permanent labor certification
applications and approved certifications filed under both the Program
Electronic Review Management (PERM – ETA9089) program regulation
effective March 28, 2005, and prior regulations implementing the
permanent labor certification program (ETA – 750).
What does this mean for employers?
- If
your company has been working on I-140 petitions based upon substituted
labor certifications you must complete and file them as soon as
possible. (The rule does not affect those already approved or
in process at the time of the rule’s effective date. USCIS
no longer allows the option of premium processing on I-140 petitions
based upon substituted labor certifications.)
- Your
company must work effectively with your attorneys to promptly
file I-140 petitions after a labor certification is approved since,
for the first time, it has an expiration date of 180 days after
approval. (All labor certifications approved prior to the effective
date of this rule will expire on Jan. 8, 2008 – 180 days
after the rule takes effect.)
-
Your company should no longer allow reimbursement of any kind
for fees relating to the labor certification process. This includes
employer/employee contracts that may have formerly been used to
obtain reimbursement if an employee leaves before a certain period
of time. If you have questions on this issue, please contact a
DWT attorney to discuss your options since the penalties for non-compliance
are great.
- As
always, submission of fraudulent or false information is illegal.
The DOL procedures for responding to incidents of possible fraud
have been more clearly defined and will be more strictly enforced.
-
PERM Compliance Files for individual alien employees should be
kept for at least five years in case an audit is ever performed.
- If
a company or attorney is found in violation of PERM requirements
the DOL may ban them from submitting further labor certification
applications.
On a related note—please be aware that most USCIS filing
fees will rise substantially as of July 30, 2007. For example, the
fees for filing an I-140 petition will jump from $195 to $475. Click
here for a list of the increases for all USCIS filing fees.
Finally, as you are well aware, Immigration Reform is a hot topic
right now in Congress. We are monitoring the progress of the Comprehensive
Immigration Reform Bill as well as its related amendments and “bargain.”
We will provide you with an update once the final law is agreed
upon and the implications of such become more clear.
If you have questions
or would like more information, please contact:
Davis Wright Tremaine has employment and labor lawyers in Alaska,
Oregon, Washington state, California and Washington, D.C. We represent
many clients nationally. For a specific referral for a DWT employment
and labor attorney in your state, please contact the above attorney.
Thank you.
This
advisory
is a publication of the Employer Services Department of Davis Wright
Tremaine LLP. Our purpose in publishing this advisory
is to inform our clients and friends of recent developments in employment
law. It is not intended, nor should it be used, as a substitute
for specific legal advice as legal counsel may be given only in
response to inquiries regarding particular situations. Attorney
Advertising. Prior results do not guarantee a similar outcome. Thank
you.
Copyright
© 2007, Davis Wright Tremaine LLP.
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