Labor Certification Amendments: What it means for you?

On May 17, 2007, the Department of Labor issued a number of amendments to the existing Labor certification rules through a Final Rule. The major changes included termination of the practice of substituting aliens on approved LC. The new amendments go into effective from July 16, 2007. USCIS has already issued new guidelines on filing I-140 in response to the amendments.

The new regulations have caused a major rush of last minute applications before the rule comes into effect. The USCIS has already terminated all Premium Processing on I-140 cases with LC Substitution as the agency surmised that it will not be able deliver on the 15-day deadline under the current work load.

In this article we will try to prepare you, both as employers and employees to deal with the changes made and the coming future.

What Are the Changes?

The DOL Final Rule has made three significant amendments, in an effort to curb fraud and also to streamline the LC process by integrating it more completely with the PERM process, by getting rid of some of the older by-processes. Let’s first look at the amendments made -

  1. The most significant change is of course the termination of LC Substitution. Till today, employers who had approved LCs for beneficiaries who had left the job or went back home, simply substituted a new employee instead, thereby avoiding the hassle of going for a new LC all over. This practice will not be possible anymore after July 16th, 2007.
  2. An expiry time limit of 180 days has been set on all approved LCs i.e. an LC will expire if the I-140 is not filed within the time limit. This applies to all LCs approved on or after July 16, 2007 only.
  3. Employers cannot seek or receive any kind of payments for dealing in LC; like sale, barter, or purchase of LC.
  4. Employers need to bear the cost of attorney fees and other legal fees of LC.
  5. Even if beneficiary has his own legal counsel, employer need to pay legal costs incurred for the LC stage.
  6. If the employer has an established business arrangement with the legal representative which requires the beneficiary to pay the legal fees, then the contract stands, despite the amendment.

What does it mean for the employers?

  1. If an employer has an approved LC whose beneficiary is not available for i-104 processing, then the right thing to do will be to find another beneficiary and file for I-140 before July 16th, rather then let it go to waste.
  2. At the same time, employers should be careful so that their action is not interpreted as sale, barter or purchase of LC. Even though the amendments do not come into effect till July 16th, any such transaction can blacklist an employer in future.
  3. The employers should inform beneficiaries their LC status at the earliest, so that all currently approved LC can be used up before the deadline of July 16th.
  4. Employers should start filing preparations for I-140s immediately, as the 180 days expiry time limit will start from July 16th.

What does it mean for the employees?

  1. For employees, if they haven’t done it already, we suggest you immediately check the status of your LC from your employers or legal counsel.
  2. If your LC has been approved, we suggest you request your employer to file for 1-140 immediately, so as to beat the expiry deadline by a wide margin
  3. Please note, if your LC process starts on or after July 16th, your employer is obligated to pay your legal fees and other related costs. Even if you have your own attorney, the legal fees associated with processing I-140 can be charged to your employer.
  4. If the employers requests you to pay the LC fees, you can ask to see the legal contract between the employer and the legal counsel, which is the only exception allowed in this case.

Points still not clear

While the new amendments state that the employer will pay for the LC cost even if the beneficiary has his legal counsel, it is not clear whether the same legal counsel can represent both the employer and beneficiary at the same time, separately.

What to expect in future?

We at Immitips believe that despite the initial chaos, the amendments will pave the way for a smoother green card process in future. We see this as an effort to integrate the old processes with the new PERM system. Of course, the initial rush to meet the deadline will leave many deserving candidates in the lurch. It is likely that beneficiaries who have invested 7-8 years in this process may be forced to return home.

However, removing the substitution process will also force the employers to process the paper work faster and more efficiently. The mandatory financial accountability will force employers to push for the approval of LC and then filing of I-140s before the expiry, thus speeding up the entire process for candidates who before hand had to wait for years.

This will also make sure employers file for the optimum number of LC and process them in time, so that more LCs can be processed at the shorter time. Employers currently are guilty of filing for more LCs then necessary, as they had no expiry limit and could be used when and as the necessity arose. While this was a common practice in the past, owing the incredibly long processing time for LC (1 year), under the current computerized system, the old practice has been simply dragging the green card process.