LAWFUEL – The Law Firm Newswire – Effective July 16, 2007, there will be several major changes to the program of labor certification for the permanent employment of aliens in the United States, the first part of the process for most employer-sponsored permanent resident cases. Under the program, the Department of Labor certifies to the Secretaries of Homeland Security and State that there are not sufficient U.S. workers who are able, willing, qualified and available at the place of intended employment to undertake the offered position and that the employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. For most employment-based cases, the Department of Homeland Security may not approve an immigrant worker petition and the Department of State may not issue an immigrant visa without such certification. Since March 28, 2005, labor certification has been conducted by use of the PERM (Program Electronic Review Management) system, which allows for on-line application filing and approval.
Labor certification will change in the following ways:
All costs associated with obtaining labor certification must be borne by the employer, including attorney’s fees and costs and advertising fees. The employer cannot require payback from the alien at a later time and may not demand wage concessions, including deductions from wages, salaries or benefits. The alien may engage separate counsel and pay for that attorney’s fees. However, if an attorney represents both the alien and the employer, the attorney will be deemed to be the employer’s attorney and must be paid by the employer. The alien is not barred from paying for fees and costs associated with two later stages of the permanent residence process: the I-140 immigrant petition for an alien worker filed with U.S. Citizenship & Immigration Services (USCIS), a part of the Department of Homeland Security, and the final stage of an I-485 adjustment of status filed with USCIS or an immigrant visa application filed with a State Department consular post abroad.
An approved permanent labor certification will only be valid for 180 days during which time an I-140 petition must be filed. Any labor certifications approved prior to July 16, 2007, will expire on January 11, 2008 unless filed in support of an I-140 petition before that date.
The practice of allowing substitutions of alien beneficiaries on permanent labor certification applications or resulting certifications will cease. In other words, the certification will only be valid for the individual named as a beneficiary on the application. USCIS will continue to accept and adjudicate I-140 petitions that request a labor certification substitution if they are filed prior to July 16, 2007. USCIS will not allow such petitions to be included in its premium processing program under which a petitioner may pay $1,000 in order to have the case adjudicated within 15 calendar days.
Neither an application for permanent labor certification nor an approved labor certification may be sold, bartered or purchased. This prohibition covers the transfer of ownership of any labor certification application or certification for the payment or promise of payment of money or any other valuable consideration.
Any attorney, agent or employer who is found to have committed fraud or willful misrepresentation involving the permanent labor certification program or has engaged in a pattern or practice of failing to comply with program requirements may be debarred for up to three years. Debarment means that an individual or entity may not participate in the program.