As of July 16, 2007, the Department of Labor’s new rule regarding the PERM/labor certification process for the permanent employment of foreign workers in the United States is in effect.
Key provisions of the new rule (1) place a limit on the validity period for certified labor certifications and PERM applications; (2) restrict an employer’s ability to seek reimbursement for costs associated with the labor certification process; and (3) eliminate the ability to substitute foreign workers on labor certifications.
1. LABOR CERTIFICATION VALIDITY PERIOD
Effective July 16, 2007, employers must now file I-140 petitions with the USCIS within 180 days of the labor certification approval. For labor certifications that were approved prior to July 16, 2007, employers must submit the I-140 petitions within 180 days of July 16, 2007; therefore, any labor certification approved before July 16, 2007 will expire as of January 12, 2008.
If an I-140 petition is not submitted within these timeframes, the approved labor certification will expire.
2. PROHIBITION ON CERTAIN PAYMENTS ASSOCIATED WITH THE LABOR CERTIFICATION PROCESS
Employers are no longer permitted to seek or receive payments for any activity related to the labor certification process. Therefore, employers can no longer request or require reimbursement of any fees associated with the labor certification process, including attorneys’ fees. According to the new rule, “payment” includes outright monetary payments, wage and benefits concessions and deductions, and free labor.
Reimbursement agreements that encompass the costs associated with labor certification applications are likewise prohibited.
Please note: This prohibition relates only to costs associated with the labor certification. It does not affect the employer’s ability to recoup costs associated with the I-140/I-485 applications.
Please note the following exceptions:
- Pre-Existing Reimbursement Agreements. If the employer and employee had a pre-existing reimbursement agreement and the employee’s payment obligations accrued prior to July 16, 2007, the employer has the right to seek reimbursement from its employee for costs associated with the preparation and filing of the labor certification. Employers may continue to seek reimbursement pursuant to these agreements even after July 16, 2007.
- Employee’s Attorney Costs. The employee may pay for his/her own labor certification costs, including attorney fees for representation, if the filing attorney does not represent both the employer and the employee. The employee may only pay for costs affecting his/her own interest – such as the review of the labor certification – and not for the preparation, filing, and obtaining of a labor certification;
- Third Party Reimbursement. The rule allows third parties to reimburse the employer for labor certification costs if the third party had a legitimate, pre-existing business relationship with the employer and the work to be performed by the employee would benefit that party.
3. NO SUBSTITUTIONS OF ALIEN BENEFICIARIES FOR AN APPROVED OR PENDING LABOR CERTIFICATION
The Department of Labor previously allowed employers to substitute an alien named on a pending or approved labor certification with another qualified alien employee as long as certain requirements were met. This new rule ends that practice. Substitution of alien beneficiaries is no longer permitted.
Please contact your Ogletree Deakins attorney with any questions.
Note: This article was published in the July 17, 2007 issue of the Immigration eAuthority.
