On May 17, 2007, the Department of Labor (DOL) published a final rule affecting labor certification applications. The final rule is effective on July 16, 2007. The majority of regulatory changes are designed to reduce the incidence of fraud relating to the labor certification program. The principal new provisions are as follows:
- Elimination of Substitution of Beneficiaries. After July 16, 2007, an immigrant petition (Form I-140) may no longer be filed with USCIS requesting that a different foreign national from the individual set forth on the approved labor certification application be substituted as the beneficiary.
- Requires Employers to Pay Fees. Employers are not permitted to seek or receive payment of any kind relating to obtaining a labor certification, including the payment of attorneys' fees; payment includes monetary payments, wage concessions, free labor, and the like. Where an attorney represents both the employer and the foreign national, attorneys' fees must be borne by the employer. However, a foreign national may retain an attorney separately to represent solely the foreign national's interests in the process.
- Creates 180-Day Post-Certification Validity Period. All labor certifications must be filed with USCIS in support of a Form I-140 immigrant petition within 180 calendar days of approval by DOL, or they will expire. Any labor certification approved after July 16, 2007, will be subject to the 180-day validity rule. Any labor certification application approved prior to July 16, 2007, must be filed in support of a Form I-140 immigrant petition within 180 days of July 16, 2007, or it will expire.