Eliminations of LC Substitution: Where we stand

Last year, the Department of Labor proposed a rule that would eliminate labor certification substitutions, among other things. On January 07, the DOL submitted the final version of this rule to the Office of Management and Budget (OMB) for review.

On May 1st, 2007 it was reported that the OMB has completed its review and the rule is now back with DOL, waiting finalization.

So what does the final regulation say? Unfortunately, we have no access to the final regulation until it is submitted to the Federal Register. However, we at Immitips believe that elimination of LC substitutions is indeed a reality we will have to deal with soon. The proposed rule was also rumored to have included many more changes of which how many actually will make it to the final form is not clear. The original proposed rule is available here.

The Department of Labor had proposed the changes to reduce incidents of fraud and abuse in case of permanent employment of aliens in the United States. The rule, among other key changes, proposes-

  • To eliminate the practice of substituting the alien beneficiaries on applications of and approved labor certifications.
  • To impose a 45-day deadline for employers to file approved permanent labor certifications in support of a petition with the Department of Homeland Security.
  • To prohibit the sale, barter, or purchase of permanent labor certifications or applications, as well as related payments.

We at Immitips believe the proposed 45-day validity period for approved labor certifications is not practical. From a practical standpoint, a 45-day validity period is unreasonably short and such a radical departure from previous practice that it would seriously disrupt employers’ current immigration programs.