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Is the DOL Regulation Eliminating Labor Certification Substitutions Imminent? |
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There is a rumor afoot that the final rule from DOL eliminating substitutions is imminent. Not quite---here�s the story:
On 2/13/06, the Department of Labor proposed a rule that would eliminate labor certification substitutions, make certified labor certifications valid for 45 days, limit payment of expenses including attorneys� fees, and make other changes to the process. AILA and many others submitted comments on this proposed rule.
On 1/26/07, DOL submitted to the Office of Management and Budget (OMB) the final version of this rule. OMB generally has 90 days to review a regulation and either approve it, send it back for more work, or reject it. Once OMB has approved a regulation, it goes back to the agency for final signature, then is sent to the Federal Register for publication. There is no predicting how long OMB will take, or what the results of its review will be. Immigration-related regulations tend to take the full 90 days, but there is no guarantee that that will be the case here.
So what does the final regulation say? Unfortunately, copies of regulations in process no longer can be obtained prior to their submission to the Federal Register, so right now the best anyone can do is speculate. We have every reason to believe that substitutions will indeed be eliminated, but it is unknown if there will be any form of amelioration. It is not clear what, if any, of the other proposals survived to final form. The description of the regulation on the OMB�s website is interesting in its use of tenses and references sometimes to the proposed rule and sometimes to final, but it is unknown whether those shifts indicate the content of the regulation or are just the result of sloppy drafting:
The Department of Labor proposed changes to reduce the incentives and opportunities for fraud and abuse related to the permanent employment of aliens in the United States. Among other key changes, the Department is eliminating the current practice of allowing the substitution of alien beneficiaries on applications and approved labor certifications. DOL proposed to further reduce the likelihood of the submission of fraudulent applications for the permanent employment of aliens in the United States by proposing a 45-day deadline for employers to file approved permanent labor certifications in support of a petition with the Department of Homeland Security. The Final Rule expressly prohibits the sale, barter, or purchase of permanent labor certifications or applications, as well as related payments. The proposed rule also addresses enforcement mechanisms to protect program integrity, including debarment with appeal rights. These amendments would apply to employers using both the Application for Alien Employment Certification (Form ETA 750) or the Application for Permanent Employment Certification (Form ETA 9089).
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