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DOL Proposes Elimination of Substitution in Labor Certification Applications and Imposition of 45-Day Deadline for Filing Immigration Petitions; Employers to Be Required to Pay Fees
The U.S. Department of Labor (DOL) has proposed far-reaching changes in the processing of labor certification applications that would impact tremendously upon employers and foreign nationals, if promulgated, by eliminating the substitution of foreign workers in labor certification applications, imposing a 45-day deadline on filing immigration petitions, and requiring employers to pay attorney's and other fees associated with the process. Concerned parties have an opportunity to voice their opposition to these proposals. Those who feel, as we do, that these proposals are bad for business and foreign workers, should speak up.
The Labor Department published a "Notice of Proposed Rulemaking" on February 14, 2006 with a request for comments on a number of matters related to labor certifications. This process, known as "notice and comment," is how administrative agencies often make new rules. The DOL's stated goal in this Notice is "to enhance program integrity and reduce the incentives and opportunities for fraud and abuse related to the permanent employment of aliens in the United States."
First, the DOL proposes to eliminate "substitution of alien beneficiaries," the practice of replacing the beneficiary of a labor certification application with another foreign worker who possesses qualifications that meet or exceed the stated requirements of the application. Despite the DOL's expressed concerns over fraud and abuse in this particular area, many employers who have spent thousands of dollars to secure labor certification approvals will no longer be able to make use of this valuable means of obtaining "green card" status for eligible workers. According to the DOL's proposal, the prohibition would apply to all pending permanent labor certification applications and to approved certifications not yet filed as part of an I-140 Immigration Petition for Alien Worker with the U.S. Citizenship and Immigration Services (CIS). However, this regulatory change would not affect substitution cases that are approved prior to the final rule's effective date.
Second, the DOL proposes to impose a 45-day deadline by which all approved labor certification applications must be filed in support of an I-140 petition with CIS. Currently, labor certifications are valid indefinitely. The proposed 45-day deadline would apply to all I-140 petitions that have not yet been filed as of the effective date of the new rule. This will put unnecessary pressure on employers to act immediately and sometimes unnecessarily due to visa unavailability. Moreover, if adopted, this rule would compel employers and employees alike to have all supporting evidence for the immigrant visa petition, such as letters verifying experience, in hand. Such evidence can take an indeterminable amount of time to obtain, especially when it must come from abroad.
Finally, the DOL would require employers, rather than foreign workers, to pay for all attorney's fees and associated costs in connection with the preparation and filing of a labor certification application. In short, this would make it impossible for a foreign national to pay for the lawyer doing his or her labor certification case. If the employer is not willing and able to pay those fees and costs, such as advertising, then labor certification would not be available. Consequently, it would be substantially more difficult for many foreign nationals to acquire permanent resident status based upon employment.
The DOL believes that payment of such costs by foreign workers runs contrary to the purpose of the labor certification process, which is meant to determine whether U.S. labor is available. Presumably, reimbursement agreements under which employers are reimbursed for such costs when foreign workers terminate their employment before a certain period of time would no longer be enforceable.
It is important to note that these rules are proposals and are not yet in effect. The DOL Notice of Proposed Rulemaking provides a 60-day comment period, ending on April 14, 2006. It is expected that the final rule will not be implemented for several months thereafter, if it is at all. If opposition is strong and extensive, these proposed changes may be stopped.
We encourage all who believe they will be disadvantaged by these proposals, and especially employers, to share their comments with the Department of Labor. If you are interested in obtaining a sample letter that can be submitted to the Department of Labor, please contact us. Alternatively, employers can forward their comments to the Department of Labor directly via e-mail to fraud.comments@dol.gov. (include RIN 1205-AB42 in the subject line of the message) or by mail addressed to Assistant Secretary, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room C-4312, Washington, DC 20210, Attention: John R. Beverly, Interim Chief, Division of Foreign Labor Certification. (Please note that due to security measures, mail directed to Washington, DC is sometimes delayed.)
"PERM" Developments
Nearly a year after implementing PERM, the new electronic Labor Certification Application process, several noteworthy developments and guidelines have emerged. Here are some clarifications on this sometimes confusing and mysterious system.
An important part of the PERM process is to secure a prevailing wage determination (PWD) from the relevant State Workforce Agencies (SWAs). Recently, the Atlanta National Processing Center (one of DOL's two PERM processing offices) confirmed that employers may file PERM applications even after a PWD expires, provided that recruitment for the application began during the validity period of the PWD. According to the Atlanta office, the DOL's PERM regulations incorrectly cited a provision that appeared to only allow employers to file PERM applications during the validity of the PWD, which raised a number of complications. For example, SWAs regularly issued PWDs with varying validity periods often expiring prior to when an employer was able to file a PERM application. Our office has just received written confirmation from the Chicago Processing Center that it too is interpreting the PERM rule to allow employers to file with expired PWDs, so long as the recruitment began during the validity period. This is important because DOL headquarters has yet to confirm that its regulations were incorrectly drafted. Given this guidance from the DOL PERM processing centers, it is clear that employers should not be prevented from filing PERM applications just because a PWD expired before a PERM application could have been submitted.
Another trend is emerging concerning PWDs. In December 2004, prior to the implementation of the PERM process, Congress created a four-tier wage system to replace the then-existing two-tier wage system. This new wage system was supposed to be implemented on a consistent basis by SWAs across the United States to produce a uniform methodology for determining PWDs for PERM cases. However, SWAs across the country are now applying varying standards to determine prevailing wages, despite the fact that SWAs are supposed to follow DOL guidelines to determine prevailing wage levels. (The most recent version of the DOL instructions may be found here.) As a result of the varying methodologies, employers are receiving PWDs that do not necessarily comport with industry or market standards, that do not seem to be based upon any sort of consistent standard, and that vary from state to state. To make matters worse, some SWAs are taking an extremely long amount of time to process PWDs, and thus are delaying by several weeks this key element of the PERM process.
In addition, the DOL will move occupations in its O*Net system between varying "Job Zone Levels" without notice. These codes offer guidelines regarding what level of education and work experience may be required by an employer in the labor certification process. The unexplained and spontaneous movement of such occupations by the DOL has created havoc for employers who, in the middle of conducting PERM recruitment based on particular Job Zone Levels, are suddenly forced to abandon cases midstream. As a result, employers are urged to maintain vigilance regarding PERM Job Zone Levels on the O*NET system at all times prior to the submission of a PERM application with the DOL.
Prognosis on Employment-Based Immigrant Visa Availability
The Department of State (DOS), in its March Visa Bulletin, provides some encouragement about the future availability of employment-based immigrant visas. According to DOS' analysis, the visa priority dates (the dates by which visas actually become available) have become more current than originally anticipated because demand by the Immigration Service has decreased more than predicted. Priority dates are assessed monthly by the DOS and can move backwards, forward, or remain the same without notice. While DOS predicts that the forward advancement of cut-off or priority dates at this time should prevent a situation late in the fiscal year - a situation we saw in 2005 - where there are large numbers of visas available but not enough time to use them. DOS cautions, however, that these advances may not continue, and that in the future, waiting periods for lesser skilled workers is a distinct possibility should demand for such visas increase dramatically. Longer waiting periods are normally preceded by a period of no movement of the cut-off or priority date. It is also important to keep in mind that DOL is working to eliminate the current backlog of an estimated 300,000 old labor certification applications filed pre-PERM. Backlog progress means more employment-based visa petitions will be filed and lines will get longer.
Gearing Up for H-1B Filings for New Fiscal Year, Starting April 1st
In approximately six weeks, employers will be able to file new H-1B petitions for their professional employees who will commence work on October 1, 2006. Employers who have not already done so should identify those new hires who will require a first time H-1B visa so that a petition can be filed as soon as practicable. This is critical. It is anticipated that the H-1 cap will be reached well in advance of the start of the new fiscal year on October 1, 2006
DHS Inspector General Cites L Intracompany Transferee Vulnerabilities
The Department of Homeland Security (DHS) is once again looking into perceived vulnerabilities and potentials for abuse in the L-1 intracompany transferee nonimmigrant program. Just recently in January of 2006, the DHS Office of the Inspector General (OIG) issued a report citing several vulnerabilities and recommending agency actions. The report also suggests that certain legislative fixes are in order. In particular, the OIG focused its attention on the definition of "specialized knowledge" as well as various difficulties reported by adjudicators in evaluating the "true" intent of the L-1 employer. What this portends for the future remains to be seen; however, this report provides fodder for anti-immigrant forces in Congress and elsewhere. Countless American companies rely on the L-1 program to routinely transfer key personnel to the United States. Those who do must make their needs clear to their U.S. Representatives and Senators.
President Bush Highlights Immigration Issues in State of the Union
As noted in our January 2006 newsletter, immigration law and policy will remain center stage this year. In his recent State of the Union address, President Bush reiterated his interest in immigration law reform. He emphasized the need to balance immigration enforcement and border protection with a rational, humane guest worker program. For more details on these proposals, see Immigration News & Analysis January 2006.