Immigration Alert

July 5, 2007

Practice Pointer: Three Looming Changes for Labor Certifications
 

On July 16, 2007, a long-anticipated Labor Certification rule goes into effect. The enactment of this rule will have three significant changes for HLG clients:

1. Employers will no longer be able to substitute workers for prior-approved Labor Certifications.

At present, if the initial Beneficiary leaves or otherwise changes his employment, the Employer can substitute in another employee for that approved Labor Certification. The Department of Labor (DOL) has long thought that this system leads to abuses, such as Beneficiaries fraudulently representing their work experience. Beginning July 16 only the named Beneficiary can use the Labor Certification.

HLG strongly recommends that if any HLG Employers hold any Labor Certifications for employees who are no longer with their organizations (or employees who have moved on to different positions within the organization) that the Employers contact their HLG attorneys to see if any existing employees can be substituted in for these prior-approved Labor Certifications.

2. 180 day rule on Labor Certifications.

Starting July 16 Employers will only have 180 days from the approval of a Labor Certification in order to file the I-140, Application for Alien Worker.

Under this new rule, any Labor Certification that was approved prior to July 16, 2007 will effectively have an approval date of July 16, 2007. In other words, any Labor Certification approved prior to July 16, 2007 must be filed by January 12, 2008.

In 2008 the DOL will be revising the PERM Application (Form 9089). This revision will include an expiration date.

3. Payment of Attorney Fees for Labor Certifications.

Effective July 16, Employers must pay all Attorney Fees associated with the Labor Certification process. The rule also bars Employers from passing on any other costs such as recruitment costs, advertising charges, and headhunting fees. Employees may still pay for fees and costs associated with the I-140 and I-485 processes.

Employers who regularly request that their employees pay for the professional services associated with the Labor Certification process are encouraged to revise their employment contracts with their employees to reflect this change.

The new rule also bars Employers from collecting fees and costs from employees. In other words, Employers cannot “charge back” Labor Certification fees and costs to their Employees. Similarly, Employers are barred from reducing employees’ paychecks to reflect the fees and costs associated with the Labor Certification process, which not only runs afoul of this rule but may cause violations of prevailing and actual wage rules.

If any HLG Employer-clients currently have agreements with HLG that provide for employee payment of Labor Certification fees and costs, they should contact their attorney in order to make sure that these contracts are compliant with the revised law.

Finally, HLG reminds its clients that the new USCIS filing fees go into effect on July 30. Our May 29, 2007 Immigration Alert that announced this change includes the new filing fees for many common filings. That Immigration Alert is available here:
http://www.hammondlawfirm.com/alerts/USCIS_filing_fee_increase.htm

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