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.