DOL Proposes Massive Changes in Labor Certification Processing

The Department of Labor is proposing to make several significant changes to the way labor certification applications are processed. If passed, these proposals would seriously impact the way labor certification applications are approached by both employers and foreign nationals. The proposals include:

Requiring employers to pay all attorneys’ and other fees associated with the labor certification process.
Currently, employers are not required to pay any expenses associated with the permanent residence process for employees. We have found that employers have taken a variety of approaches to handling such costs, ranging from payment of all legal and related expenses for an employee to requiring the employee to pay all such expenses. While the proposal is designed to combat fraud, we believe that the proposal would make it very difficult for many small, non-profit, and government employers to sponsor foreign workers for labor certification.

Imposing a 45-day deadline for the filing of I-140, Immigrant Worker Petitions, based on an approved labor certification.
Under current law, labor certifications are valid indefinitely. We expect that, if promulgated, the DOL’s proposal will create great difficulty for employers and their foreign workers to timely process I-140 petitions for numerous reasons, including financial impediments, the unavailability of critical personnel to timely process the paperwork, and the inability to obtain necessary supporting paperwork within the requisite time period, among numerous others.

Eliminating the ability of employers to substitute foreign workers on labor certification applications. Currently, employers may replace a beneficiary of a labor certification with another foreign worker who possesses qualifications that meet or exceed the requirements of the application. The proposal would invalidate the labor certification for anyone but the beneficiary shown on the original labor certification.

The DOL is scheduled to act on these proposals by April 2007. While it is not certain that the proposals will be passed (or passed as written), we strongly encourage employers who require their foreign workers to pay for labor certification cases to get started immediately. We also urge foreign workers with pending labor certification applications to act now to obtain supporting documentation confirming their qualifications for an immigrant petition.