Department of Labor Seeks to E

Department of Labor Seeks to Eliminate Substituting Alien Beneficiaries on Approved Labor Certification Cases By: Nicole C. Dillard, Esq. 據了解，勞工部DOL不久將來可能會對現時的勞工認證申請作出一些改變，其中包括關於取消labor certification substitutions，加強各方麵審核要求，以及對被批準的labor certification限定申請人要在45天內要遞交I-140申請等。針對這項proposed rule正式落實之前，DOL會先聽取各界的意見。以下為labor certification substitutions及現時Alien Labor Certification 的一些信息。 ***This is a continuation of the brief article that was published on our website on Friday, February 10, 2006 . This article describes, in more detail, the proposed rule submitted by the Department of Labor to eliminate the ability to substitute alien beneficiaries on Alien Labor Certification, limit the time frame for filing approved labor certifications with I-140 petitions and to enforce fraudulent activities regarding the sale and barter involving alien labor certifications. For more than a year, Immigration attorneys have speculated as the Department of Labor’s (DOL) intent to eliminate employer’s abilities to substitute alien beneficiaries on approved Labor Certification Applications. The DOL has finally made good on the speculation and have submitted a proposed rule with a request for comments. The purpose of this proposed rule is to: 1. Eliminate the current practice of allowing the substitution of alien beneficiaries on permanent labor certification and resulting certifications. 2. The DOL is proposing a 45-day period for employers to file approved permanent labor certifications in support of a petition with Department of Homeland Security, United States Citizenship and Immigration Services 3. The proposed rule expressly prohibits the sale, barter, or purchase of permanent labor application and certifications, as well as other related payments. Under this proposed regulation, these provisions aim to enhance program integrity and reduce fraud and abuse that would apply to permanent labor certification applications and approved certifications filed under both the ( PERM ) regulation effective March 28, 2005 , and any other prior regulation implementing the permanent labor certification program. History of Labor Certification Substitution As an accommodation to employers, the DOL has traditionally allowed employers to substitute alien names on a pending or approved labor certification with another prospective alien employee. Labor certification substitution has occurred either while the certification application is pending at the DOL, or while a form I-140 petition, filed with an approved labor certification, is pending with the DHS. The historical basis for allowing substitutions of alien beneficiaries was permitted because of the length of time it took to obtain a labor certification or receive the I-140 approval. The streamlined process ( PERM ) introduced by the new regulation, however, has reduced significantly the processing time for those employers who legitimately need to file a Labor Certification application. The DOL’s rationalization is that if substitution is no longer necessary to accommodate long wait times, the Department believes there is no longer a compelling reason to allow the practice. Because the Department’s primary concern in the permanent labor certification area is the protection of U.S. workers, if the original alien is no longer available, the purposes of the permanent labor certification program are most advanced if the employer is required to seek a new employee first among U.S. workers. Current Assessment of Alien Labor Certifications The DOL asserts that the ability to substitute alien beneficiaries has resulted in a high degree of fraud and abuse, consequently resulting in somewhat of a “black market.” The “black market” has been created in which employers or gents agree to broker applications for permanent labor certifications on behalf of aliens in exchange for payment of some kind. Such payments are not compatible with the purpose of the permanent labor certification program and may indicate lack of a bona fide position truly open to U.S. workers. Further, these payments may indicate the wage stated on the application is not the true amount the employer will pay the alien. The DOL’s review of recent prosecutions by the Department of Justice has revealed the ability to substitute alien beneficiaries has turned labor certifications into a commodity, which can be sold by unscrupulous employers, attorneys and agents to those seeking a “green card.” Therefore, in order to protect the integrity of the permanent labor certification program, deter fraud, and comply with Department statutory obligation to protect the wages and working conditions of U.S. workers, the Department has determined a number of amendments are appropriate. Consequently, on or after the effective date of the final rule, the DOL may debar and employer, attorney or agent based on any actions that were improper or prohibited at the time the action occurred, regardless of whether the labor certification application involved was filed under the prior or current regulation. The DOL’s proposed rule further states that the substitution of alien beneficiaries will be prohibited as of the effective date of a final rule. The prohibition will apply to all pending permanent labor certification applications and to approved certifications not yet filed with the United States Citizenship and Immigration Service, whether the application was field under the prior or current regulation. This regulatory change would not affect substitutions approved prior to the rule’s effective date. The Department of Labor’s proposed rule also makes the validity period of the labor certifications approved on or after the effective date of the final rule (the rule is final once it is published in the Federal Register). The proposed rule limits is that labor certifications will expire within 45 calendar days of certification, regardless of whether the original application was filed under the prior or current regulation. Moreover, all verifications approved prior to a final rule’s effective date, whether field under the prior or current regulation, will expire within 45 calendar days of that effective date unless filed in support of an I-140 petition with the Department of Homeland Security. Please continue to refer back to this website for more information on the DOL’s proposed rule. The DOL is currently accepting comments for the next 45 days on their proposed rule. During this time, people are able to submit the comments regarding the rule for consideration. ______________________________________________________________________________ 本文由範毅禹律師事務所提供 本律師事務所精辦各類勞工應聘及專業移民申請 (包括H-1，L-1，EB-1，EB-2，NIW，勞工卡，綠卡等申請)。所有申請由多位美籍律師及擁有15年經驗的範毅禹律師親自處理，我所並特設中英移民網站。內有最新移民新聞資訊及由律師主持的移民問答集，歡迎讀者流覽查詢。 www.Fan-Law.com CALIFORNIA : Fan, Fitzpatrick & Thompson, LLP. 370 E. Glenarm St., Pasadena , CA 91106 Tel: [phone] Fax: [phone] MARYLAND : Fan, Fitzpatrick & Thompson, LLP. 230 North Washington Street, Suite 400 , Rockville , MD 20850 Tel: [phone] Fax: [phone]