On January 26, 2007, the U.S. Department of Labor (DOL) sent a draft final rule eliminating so-called "labor certification substitution" and limiting the validity period for approved labor certifications to the Office of Management and Budget (OMB) for review. "Labor certification substitution" is the procedure by which an employer files an immigrant petition on behalf of a foreign employee based upon a labor certification approved for a different foreign national, who has since left the employer or is otherwise no longer in need of the approved labor certification. This can be a very handy tactic for employers who need to quickly help a valued employee immigrate, but would rather avoid the costly and time-consuming process of filing a new labor certification. Even where a foreign employee already has an approved labor certification filed on his or her behalf, employers may effectively use labor certification substitution to secure an earlier priority date for employees in need of them.

The proposed rule was published in February 2006 for notice and comment by interested parties and DOL accepted comments on the rule until April 2006. The final rule now pending at OMB includes DOL's responses to the comments submitted. After OMB review, the final rule may be returned to DOL for additional changes, or cleared as a final rule for publication in the Federal Register. The OMB review stage usually takes 60-90 days, but the length of the review may vary.

The referral of the draft final rule to OMB has led to rumors and speculation that labor certification substitution has already been eliminated, or it will be eliminated in the immediate future. This is not the case. While OMB review of the proposed rule suggests that a rule may be published in the coming months, there is no way to know when the final rule will be published, or what will be the rule's effective date.

More importantly, there is no way to know what the draft final rule contains as regulations in process are not public documents until the final rule goes to the Federal Register for publication.

DOL describes the draft rule on the OMB website as:

The Department of Labor proposed changes to reduce the incentives and opportunities for fraud and abuse related to the permanent employment of aliens in the United States. Among other key changes, the Department is eliminating the current practice of allowing the substitution of alien beneficiaries on applications and approved labor certifications. DOL proposed to further reduce the likelihood of the submission of fraudulent applications for the permanent employment of aliens in the United States by proposing a 45-day deadline for employers to file approved permanent labor certifications in support of a petition with the Department of Homeland Security. The Final Rule expressly prohibits the sale, barter, or purchase of permanent labor certifications or applications, as well as related payments. The proposed rule also addresses enforcement mechanisms to protect program integrity, including debarment with appeal rights. These amendments would apply to employers using both the Application for Alien Employment Certification (Form ETA 750) or the Application for Permanent Employment Certification (Form ETA 9089).

While it is likely that the labor certification substitution process is going to be eliminated, please note that the final rule would only apply to future filings, not to pending I-140 petitions based on labor certification substitution. Employers and individuals with pending I-140 petitions based on a labor certification substitution will not be impacted by this rule. It is unknown if the rule includes a grace period during which substitutions may be filed, or if any of the other proposals that were designed to eliminate fraud have survived to the final rule.

You may review our original news item on the proposed rule here.

We will update our clients as soon as additional information becomes available.

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