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"A Moveable Feast": An Analysis of Adjustment of Status Portability Under AC21 (Part III)
by Angelo A. Paparelli and Janet J. Lee


Labor Certification - Background

The concept that an approved labor certification remains valid with respect to an alien who has changed to another qualifying job raising potential problems involving the "recycling" of an approved labor certification. Employers have long been permitted to recycle an approved, but unused labor certification by substituting an alien beneficiary.28 Thus, employers were often able to salvage a labor certification that would otherwise be unused if the initially sponsored alien beneficiary resigned or was terminated from employment. Under former practice, the Department of Labor ("DOL") had allowed employers to return an approved labor certification and submit an identical application on behalf of another alien worker with similar qualifications.

The evolution of this procedure shows several failed attempts by the DOL to restrict or eliminate alien substitution. In its Technical Assistance Guide ("TAG"), the DOL restricted the use of this procedure to the first six months of the date of certification. The Fifth Circuit rejected this limitation in Medellin v. Bustos.29

The Fifth Circuit based its holding on several factors. First, the court found that recognizing the DOL's interpretation as expressed in the TAG would disrupt the delicate interplay of administrative power. According to the court, the DOL is specifically mandated to determine whether: (1) U.S. workers are able, willing, qualified and available to work at the time and place where the alien is to be employed; and (2) employment of the alien worker will adversely affect the wages and working conditions of similarly employed U.S. workers. It is the INS, the court ruled, that has the authority to determine eligibility for immigrant visas.30 By limiting substitution, the court concluded, the DOL effectively determined the "fate of the particular alien,"31 which is the province of the INS.

Second, the court ruled that the TAG's limit on substitution of alien beneficiaries was inconsistent with both federal regulations and agency practice. The court noted that 20 C.F.R. 656.30(a) provides that a labor certification is valid indefinitely. Hence, once a test of the labor market has been completed, the DOL is not authorized or required to reevaluate the relevant labor market. Thus, in the case presented, the only event triggering the revocation of the labor certification was that the employer sought substitution after the allotted six-month window. Noting that the labor certification would have remained valid for potentially several years (until the alien beneficiary's approval for an immigrant visa), the Fifth Circuit concluded that the six-month limitation did not comport with the indefinite validity of the same labor certification without substitution.

Finally, the Fifth Circuit ruled that limiting a labor certification to the alien for whom the certification was initially granted would fulfill the purpose of the statute "only if the qualifications of a substitute alien are so different from those of the original applicant that employment of the substitute will adversely affect the wages and working conditions of United States workers similarly employed."32

With the enactment of the Immigration Act of 1990 ("IMMACT"),33 the DOL attempted to promulgate regulations that eliminated the substitution procedure altogether.34 The DOL stated that its decision was based on "a variety of reasons," including: the Department's belief that substitution of alien beneficiaries was unfair to U.S. workers who may be available for the job at the time of substitution and to other aliens seeking to enter the United States who have a later priority date. The DOL also expressed concern about potential abuse and manipulation.235 According to the DOL, "the benefits of the accommodation are outweighed by the negative factors related to the substitution practice."36 In a 1994 challenge to the statute, however, the D.C. Circuit enjoined the enforcement of this provision. Basing its decision on the Administrative Procedure Act (APA),37 the court held in Kooritzky v. Reich that the DOL failed to satisfy its obligation to provide notice and an opportunity for comment by interested parties regarding the proposed elimination of substitution of aliens.

After this decision, the DOL processed requests for substitution of aliens under the pre-IMMACT procedure. However, in 1996, the DOL delegated this responsibility to the INS, which established the current procedure for substitution. Thus, after the termination of the alien beneficiary's employment, the sponsoring employer may initiate the substitution of the alien beneficiary by filing an I-140 petition on behalf of the substitute employee. The employer must demonstrate that the substitute alien worker satisfied "all of the minimum education, training, or experience requirements, as stated in Part A of the original Form ETA 750 filed by the employer, at the time the original labor certification application was submitted to the state employment office."38 Moreover, the employer must submit a new Part B of the Form ETA 750, Statement of Qualifications of Alien and supporting documentation evidencing the substitute alien beneficiary's education, training or experience. The INS memorandum outlining this procedure also provides that if the sponsoring employer has already submitted the approved labor certification to the INS, the employer may submit a photocopy of the original Form ETA 750, Parts A and B, along with the DOL certification and, if one exists, a copy of a previous Form I-140 petition and a new Form I-140 petition.39

Continuing Viability of Substitution - The "Cell Mitosis" Theory

Although 106(c)(2) does not expressly revoke the sponsoring employer's right to substitute another alien when the initial alien worker changes employment, attorneys and their clients must weigh the risks very carefully before making the decision to substitute another alien worker in the labor certification. In light of the AOS portability provision, the INS or the DOL may take the position that substitution of aliens is no longer permitted. Either agency may argue that the ruling in Kooritzky was premised upon a finding of violations of the APA notice and opportunity to provide comment requirements, i.e., administrative violations, rather than a substantive determination regarding the legitimacy of the principle of substitution of aliens. As a result, the INS or DOL could argue that AC21 established the alien beneficiary's legal entitlement to the approved labor certification, thereby nullifying the sponsoring employer's right to substitute an alien beneficiary. For reasons discussed below, however, the public policy espousing portability must be reconciled with other policy interests.

AOS portability does not necessarily reflect an intent to deprive the initial sponsoring employer of the benefits procured through the test of the labor market. By providing that an approved labor certification will remain valid after an alien beneficiary properly changes employment, AC21 likely eliminated an employer's ability to revoke the labor certification underlying his or her I-140 petition. Given that revocation and substitution are two separate procedures, there is no clear basis to argue that Congress intended to eliminate the longstanding substitution practice.

Moreover, the significant investment employers make in obtaining a labor certification ought not be lost in the implementation of the new law. Before an immigrant visa petition is filed for professionals holding advanced degree, individuals of exceptional ability in sciences, arts, or business, skilled workers, and professionals holding a baccalaureate degree, an approved labor certification is required.40 In order to obtain approval from the DOL for labor certification, the employer must show that it conducted recruitment efforts to find U.S. workers who are "able, willing [and] qualified" for the job.41 This procedure requires the employer to invest significant resources to obtain the benefit of hiring a foreign worker on a permanent basis. If the labor certification remained valid only with respect to the worker's new employment and his or her pending AOS application, the initial sponsoring employer would lose not only a valued employee but also the fruits of its efforts in testing the labor market.

In fairness to all three parties, the labor certification should be treated as "divisible" under what can be called the "cell mitosis" theory.43 Under this theory, the labor certification would remain valid with respect to the employee's new job,43 and the sponsoring employer would also be permitted to substitute another alien worker on the labor certification. From the sponsoring employer's perspective, the conditions under which the labor certification was granted remain the same (other than the fact that the initial worker has resigned); there is still a demonstrated shortage of U.S. workers for the position. To require the employer to test the market again would be unfair and unduly burdensome. Thus, just as in the process of cell mitosis, each party (the sponsoring employer and initial beneficiary employee) should be able to retain the benefits flowing from the single approved labor certification. These benefits would include the immigrant visa priority date and the labor certification as well. To those who would argue that this would be "double-dipping," the response lies in the annual immigrant visa quota.44 This allotment provides a safeguard in that it limits the aggregate number of grants of lawful permanent resident status that the government may accord in any given year. Time will tell whether an enlightened INS or DOL, or an open-minded federal judge, will accept the cell mitosis theory.

For Part I of the article, click here. For Part II of the article, click here.

© Copyright 2001 Paparelli & Partners LLP. Published with permission. The present article is an expanded and revised version of an earlier article, Angelo A. Paparelli & Janet J. Lee, "Parting Is Such Sweet Sorrow": Musings on Adjustment of Status Portability, in New Rules for the New Millennium, AILA Publications (January 2001).

28 See memorandum from Louis Crocetti, INS Associate Commissioner, to all INS offices, Substitution of Labor Certification Beneficiaries, File No. HQ 204.25-P (Mar. 7, 1997), reproduced in 73 Interpreter Releases 444 (Apr. 8, 1996) [hereinafter Crocetti Memo]; memorandum from Barbara Ann Farmer, DOL Administrator for Regional Management, to all DOL regional administrators, Final Procedures for Substituting Alien Beneficiaries on Approved Labor Certifications, Field Memorandum No. 28-96 (Mar. 22, 1996), reproduced in 73 Interpreter Releases 447 (Apr. 8, 1996) [hereinafter Farmer Memo].
29 854 F.2d 795 (5th Cir. 1988). The Fifth Circuit also held that a six-month time limitation on substitution of a beneficiary was invalid, in part because a labor certification is valid "indefinitely." Id. at 798.
30 Id. at 797.
31 Id.
32 Id. at 798.
33 Pub. L. No. 101-649, 104 Stat. 4978. IMMACT established initial annual immigration limits of visas for family-sponsored immigrants and employment-based immigrants.
34 56 Fed. Reg. 54,920 (Oct. 23, 1991).
35 Id. at 54,925.
36 Id.
37 Kooritzky v. Reich, 17 F.3d 1509 (D.C. Cir. 1994).
38 See Crocetti Memo, supra note 28; Farmer Memo, supra note 28.
39 For samples on how the substitution procedure may be implemented, see Angelo A. Paparelli, Substitution of Beneficiary, in AILA Immigration Practice Toolbox (2001).
40 Certain immigrant visa petitions in the EB-2 classification (INA 203(b)(2)(A), 203(b)(2)(B), 8 C.F.R. 204.5(k)) and all visa petitions in the EB-3 category (INA 203(b)(3)(A)(i), 203(b)(3)(A)(ii), 8 C.F.R. 204.5(l)) require an approved labor certification.
41 The DOL attempted to streamline the labor certification process by issuing General Administrative Letter 1-97, Measures for Increasing Efficiency in the Permanent Labor Certification Process (Oct. 1, 1996), reproduced in 73 Interpreter Releases 1476 (Oct. 21, 1996). GAL 1-97 allows employers to request a "reduction in recruitment" (RIR) after engaging in "real world" advertising.
42 Mitosis is the "process in cell division by which the nucleus divides, normally resulting in two new nuclei, each of which contains a complete copy of the parental chromosomes." American Heritage Dictionary 534 (3d ed. 1994).
43 Under this theory the worker will not lose the underlying basis for his or her AOS application.
44 INA 203(b) provides the allocation of immigrant visas for employment-based immigrants.

About The Author

Angelo A. Paparelli ( has been practicing business-sponsored immigration law for over 20 years, and is the managing partner of Paparelli & Partners LLP in Irvine, California. He is a nationally recognized speaker, published author and leading expert on cutting-edge business-related immigration issues, including the immigration consequences of mergers, acquisitions, reorganizations and other business changes, consular visa practice, audits of employers' compliance with immigration and labor regulations, and employment-based work visas. Mr. Paparelli is certified as a Specialist in Immigration and Nationality Law by the State Bar of California, Board of Legal Specialization.

Janet J. Lee practices immigration law in Southern California. Ms. Lee is admitted to practice law in the State of California. She previously served as Executive Editor of The Labor Letters, Inc. from 1997 to 2000.

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