Prohibition of Substitution of Labor Certification

DO’S and DON’TS for employers and beneficiaries

As regular IMMITIPS readers you all are aware that, DOL has forwarded its draft of a final rule prohibiting substitution of labor certifications to the federal Office of Management and Budget (OMB) for final approval. The Final rule when approved will stop the practice of substituting beneficiaries on pending Labor Certification Applications (LCA), among other things. Once this final OMB review is over, which can take anytime between 30 to 90 days, the Rule will be published in the Federal Register and implemented.

IMMITIPS advisory team has thought about suggesting few guidelines to the employers and beneficiaries in light of the proposed changes.

Employers and Beneficiaries to consider the following:

  • Employers are cautioned not to create a market to sell the labor certifications. The companies could easily come under scrutiny and vigilance of the DOL and USCIS while trying to substitute labor certifications which are not genuine. As you all are aware, there should have been a bonafide job offer at the time of filing labor certification and the nature of operations, financial capacity and number of labor certifications at the time of filing the labor certification give a clear indication as to whether the company has a genuine job offer or not.
  • Beneficiaries seeking to get the substitution of approved labor certifications must be very careful in choosing the employers. They should investigate the back ground of the employer and their practices before changing the employment to take benefit of the approved labor certifications. Please check the following few things before you accept any job offer in view of the labor substitution;
  1. Check with the employer how many labor certifications they have applied in a particular financial year
  2. Check with the employer how many labor certifications they have received for the particular financial year
  3. Check the annual revenue and number of employees in the year of labor certification application
  4. Check the number of I-140’s already applied for the labor certifications received in a particular financial year.
  5. Check the reputation of the employer. If the employer is well known in offering labor certifications for a price, always avoid them as most likely the employer would be under scrutiny and vigilance of the DOL and USCIS.

It is highly recommended to seek advice of an experienced immigration attorney in making a decision at this point.