DOL Announces New Restrictions on Labor Certification Applications
by Michael J. Gurfinkel

The U.S Department of Labor (DOL) recently published new regulations, which add new requirements and restrictions relating to labor certification applications (or PERM). The purpose of this regulation is to “enhance program integrity and reduce the incentives and opportunities for fraud and abuse related to permanent employment of aliens in the United States’. In other words, the regulations hope to cut down on fraud.

Among the requirement/restrictions are:

• The employer must pay the employer’s own costs of preparing, filing and obtaining labor certification, including attorney’s fees. The employer may not transfer to the alien the employer’s cost incurred in the labor certification application process. (However, the alien may still pay his or her own legitimate costs in the permanent labor certification process, including attorney’s fees for representation of the alien.) An employer is prohibited from receiving payment of any kind as an incentive or inducement to file, or as reimbursement of the costs of preparation or filing of, an application for labor certification, including the employer’s attorney’s fees. An employer also cannot recoup the costs by deducting those amounts from the alien’s wages, salary or benefits. In other words, the employer and alien must each pay their own attorney fees, and the alien is not supposed to pay the employer’s portion of those attorney fees.
  
  
• After July 16, 2007, the employer is prohibited from substituting alien beneficiaries on approved labor certification applications. Substitution occurs when an employer replaces one alien applicant with another on an approved labor certification without losing their place in the processing line. (In the past, an employer could take an existing, approved labor certification where the original alien left the work, and could find a substitute alien to take over the existing labor certification.)
  
  
• The employer and employee are prohibited from selling, bartering, or purchasing permanent labor certification applications and other related payments. In other words, the approved labor certification application cannot be bought or sold, where an employer/alien would simply “take over” another employer’s/alien’s labor certification application.
  
  
• The labor certification would be valid for only 180 days, during which time employer would have to file an I-140 Immigrant Petition for Alien worker with the Department of Homeland Security. (In the past, labor certification applications might be valid “indefinitely”, so that once the labor certification application was “certified” by the DOL, the alien and employer might wait several years before filing the I-140 petition. This new rule requires that the I-140 petition be filed within 180 days (six months) of certification, or the labor certification will no longer be valid.)

As you can see, the DOL, as well as DHS, are getting very strict and suspicious concerning employment-based cases. They want to make sure that the job is real, the employer has sufficient income to pay the wages (ability to pay), and this is not simply a “job of convenience”, similar to a “marriage of convenience”, whereby a petition is being filed, but the alien is not really going to be working for the employer.

That is why it is so important that if you are being sponsored for a green card through labor certification, that you fully comply with all the laws, rules, and regulations, because if you do not, your case could be denied, and DHS could possibly start deportation/removal proceedings against you.

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