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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.
Copyright
© 2007, Davis Wright Tremaine LLP.
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