Time to Review Your Payback Agreements: Employers Must Absorb Costs for PERM Applications/ End of Labor Certifi cation Substitutions

The U.S. Department of Labor (DOL) published a fi nal rule, effective July 16, 2007, to “enhance program integrity and reduce the incentives and opportunities for fraud and abuse related to the permanent employment of aliens in the United States.” The provisions apply to permanent labor certifi cation applications and approved certifi cations fi led under both the Program Electronic Review Management (PERM) program regulation and previous regulations implementing the permanent labor certifi cation program.

The DOL concluded that the benefi ts of the new provisions to the labor market and the prevention of fraud outweigh the concerns of individual employers. As such, the DOL has implemented a requirement that employers pay for the costs of the labor certifi cation program, including the preparation and fi ling of the labor certifi cation application.

The benefi ciary may pay attorneys’ fees for representation of the benefi ciary or other “legitimate” costs incurred by him or her only in circumstances where the attorney does not carry dual representation. An employer’s transfer to the benefi ciary of the employer’s costs incurred is strictly prohibited. The DOL regulations provide debarment of an employer, attorney or agent for up to three years, based on certain enumerated actions such as fraud, willful provision of false statements, or a pattern or practice of noncompliance with PERM requirements, regardless of whether the labor certifi cation application involved was fi led under the previous or current regulation. The debarred party has the right to a review by the Board of Alien Labor Certifi cation Appeals.

In addition, the fi nal rule prohibits the substitution of benefi ciaries for all pending permanent labor certifi cation applications and approved permanent labor certifi cations with exceptions being made for DOL and USCIS requests made before the effective date, as well as substitution requests already in progress. The DOL rule institutes a 180-day validity period for approved labor certifi cations in which an employer must fi le an approved permanent labor certifi cation in support of an I-140 immigrant petition within the allotted time frame. Finally, the new DOL rule prohibits modifi cation of permanent labor certifi cation applications once such applications are fi led with the DOL.