Department of Labor Proposes Major Changes in Labor Certification Law

By Attorneys Robert L. Reeves and Brian Spalter

On February 13, 2006, the United States Department of Labor (DOL) proposed a number of changes to the law regarding labor certifications. As stated in the summary of the DOL’s announcement, the purpose of the proposed law change 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.” If adopted, the proposed changes would have a significant impact on the ways in which labor certification applications are prepared and processed.

One of the primary proposals being made by the DOL is the imposition of a 45-day deadline within which an employer must file its approved labor certification with the U.S. Citizenship and Immigration Services (CIS). Under the current law, there is no time period within which an employer must file an approved labor certification with CIS. Under the DOL’s proposal, all labor certifications approved on or after the effective date of the final law would expire within 45 calendar days of certification, whether the application was filed under the PERM, RIR or traditional labor certification procedures. Similarly, all certifications approved prior to the final law’s effective date, whether filed under the PERM, RIR or traditional labor certification procedures, will expire within 45 calendar days of that effective date unless filed with an I-140 petition with CIS.

A second proposal being made by the DOL is the elimination of the current practice allowing the substitution of foreign workers on labor certification applications. Under the current law, employers are allowed to substitute the foreign worker named on a pending or approved labor certification with another prospective foreign worker. If the proposed change is adopted, the substitution of foreign workers would be prohibited as of the effective date of the final law. The prohibition would apply to all pending labor certification applications as well as to all approved certifications not yet filed with CIS, whether the application was filed under the PERM, RIR or traditional labor certification procedures. The law would not affect substitutions approved prior to the final law’s effective date.

A third proposal included in the DOL announcement is an express prohibition on the sale, barter, or purchase of permanent labor applications, as well as “other related payments.” Employers would be explicitly barred from seeking or receiving payment “of any kind, from any source” in connection with the labor certification process. The law would explicitly prohibit activities such as employer fees for the hiring of foreign workers, employee payments to the employer (e.g. payroll deductions) for the filing of a labor certification, and paying the foreign worker less than the rate of pay stated on the labor certification application. The DOL proposal would include a ban on foreign worker payment, directly or indirectly, of the employer’s attorney’s fees and costs related to preparing, filing, and obtaining a permanent labor certification.

In conclusion, the DOL’s proposed changes, if implemented, will have a significant impact on the field of labor certifications. Reeves and Associates will continue to keep you informed through this column, our website and email newsletters regarding the latest DOL updates and other new developments in immigration law. If you should have any question regarding labor certifications, we recommend consulting with a knowledgeable and experienced immigration attorney.