Dilip Patel

IMMIGRATION

LABOR CERTIFICATION UPDATE - SEVERAL CHANGES PROPOSED TO GREEN CARD PROCESSING RULES
By By DILIP PATEL AND BRENT REES

The Department of Labor (DOL) published a proposal on Feb. 13, 2006 to make several substantial changes to the current rules for processing green cards. Background

To obtain permanent foreign workers, U.S. employers generally must engage in a multi-step process that involves the DOL and DHS, and in some instances, the Department of State (DOS). Immigration law classifies employment-based (EB) immigrant workers into categories, based on the general job requirements, and the perceived benefit to American society. The U.S. employer must demonstrate the job requirements fit into one of these classifications. The first step in the process for the EB2 and EB3 classifications generally begins with the U.S. employer filing a labor certification application with the DOL. The U.S. employer must demonstrate to DOL through a test of the labor market there are no U.S. workers able, willing, qualified and available at the time of the application for a visa and admission into the United States and at the place where the alien is to perform the work. The employer also must demonstrate to DOL the employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers. After a review of the labor certification application, DOL may either approve or deny the labor certification application.

The Form I-140 is a petition filed with DHS by a United States employer for a prospective permanent alien employee. Most Form I-140 petitions filed under Sections 203(b)(2) and 203(b)(3) of the Act, which are commonly called the EB2 and EB3 classifications, must be accompanied by an approved labor certification issued by DOL. DHS reviews the approved labor certification in conjunction with the I-140 petition and other supporting documents to evaluate whether the position being offered to the alien worker in the petition is the same as the position specified on the labor certification and the employment qualifies for the immigrant classification requested by the employer. In addition, DHS evaluates the alien worker's education, training and work experience to determine whether the particular alien worker meets the job requirements specified on the labor certification. The approved labor certification also is used to establish the priority in which an immigrant visa will be made available to the alien worker, based on the date the labor certification application was filed with DOL.

DOL, as an accommodation to U.S. employers, has traditionally allowed employers to substitute an alien named 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 DOL or while a Form I-140 petition, filed with an approved labor certification, is pending with DHS. Historically, this substitution practice was permitted because of the length of time it took to obtain a labor certification or receive approval of the Form I-140 petition.

For a number of years, DOL has expressed concern that various immigration practices, including substitution, are subject to a high degree of fraud and abuse.

The department's review of recent prosecutions by the Department of Justice, in particular, has revealed the ability to substitute alien beneficiaries has turned labor certifications into a commodity, which can be sold by unscrupulous employers, and agents to those seeking a ``green card.'' Similarly, the ability to sell labor certifications is enhanced by their current open-ended validity, providing a lengthy period when a certification can be marketed. In many of those applications, the job offer is fictitious. In others, the job in question exists but is not truly open to U.S. workers. Rather, the job is steered to a specific alien in return for a substantial fee or kickback.

Proposed amendments to the permanent labor certification regulations

Specifically, the Department proposes the following:

*Substitution � Substitution of alien beneficiaries will be prohibited as of the effective date of a final rule resulting from the proposal and that prohibition will apply to all pending permanent labor certification applications and to approved certifications not yet filed with DHS, whether the application was filed under the prior or current regulation. This regulatory change would not affect substitutions approved prior to the final rule's effective date.

*Validity period � All permanent labor certifications approved on or after the effective date of a final rule issued in response to the proposal will expire within 45 calendar days of certification, whether the original application was filed under the prior or current regulation. Likewise, all certifications approved prior to a final rule's effective date, whether filed 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.

*Ban on sale, barter, purchase and certain payments � The ban on sale, barter, purchase and related payments will apply to all such transactions on or after the effective date of the final rule, regardless of whether the labor certification application involved was filed under the prior or current regulation implementing the permanent labor certification program.

*Debarment and program integrity � Last, on or after the effective date of the final rule, the department may debar an employer, attorney or agent based upon 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. New provisions applicable to applications filed under the prior or current regulation also highlight existing law pertaining to submission of fraudulent or false information, and clarify procedures for responding to possible fraud.

Conclusion

These proposed changes are substantial in a number of ways. Interested parties may submit comments by April 2006 for consideration by the DOL before it implements a final rule. The final rule is expected to be published in the summer of 2006. Persons planning to file substitution applications should do so as soon as possible.

Dilip Patel is a Board Certified Immigration Attorney. He is the founder of the Dilip Patel, P.A. law firm (www.dplawfirm.com) and has practiced business and immigration law in the Tampa Bay area since 1990. He can be reached at (727) 712 0066 or by email at [email protected]