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Bloggings: May 17, 2007

by Joel Stewart

Editor's note: Here are the latest entries from Joel Stewart's blog.

May 16, 2007

DOL Substitution Rule Effective July 16, 2007

The long-awaited substitution rule has finally been published in the Federal Register as an amendment to the existing rule, making it part of the official regulations of the Employment and Training Administration. The final rule contains very lengthy discussions of the issues and public comments regarding each part of the proposed rule.

The following is a list  of the most important changes:

(1) Barter, Purchase and Sale of labor certifications is prohibited, and each of those terms is now defined in 656.3 of the PERM Rule. Note that transfer of labor certification from one employer to another may be possible, if no consideration changes hands;

(2) Substitution of alien beneficiaries is now prohibited for any application submitted after July 16, 2007. Note that previously approved substitutions and requests for substitutions in the pipeline are still valid, although the rule actually states the contrary, due to a technical error.

(3) Modifications to labor certifications are also prohibited after July 16, 2007, if such requests for modification were submitted after July 16, 2007. Note: If taken literally, no amendments may be made on labor certification applications including non-substantive changes to address and telephone numbers.

(4) Although aliens may pay their own attorney fees, only  employers may pay attorney fees if the attorney represents both the alien and the employer. Note: This appears to be the most controversial part of the new rule.

(5) Motions to Reconsider may only include documentation (a) actually received by DOL from the employer or (b) in the record file maintained for submission to DOL in compliance with the regulations. Note: No external information may be submitted to prove extenuating circumstances or manifest injustice;

(6) Motions to Reconsider may not address errors resulting from failure to follow system prompts or other direction instructions. Note: In the aftermath of HealthAmerica, the DOL is eliminating possible claims of harmless error or technical problems with software.

(7) Requests for Review to BALCA may only include legal arguments or evidence that was already in the record, except that review of disbarment may be de novo. Note: Many BALCA decisions have dealt with the integrity of the record itself, i.e., whether the CO had a complete and accurate copy of the record and how the Employer may supplement a faulty record file.

(8) Detailed rules for Appeal to BALCA. Note: Must set forth the particular grounds for the request, identify the particular determination and include a copy of the final determination.

(9) I-140 Petitions must be filed within 180 calendar days of PERM approval. Note: The day after the approval is the first day and the 180th day is the last day for filing the I-140. 

(10) Permanent Labor Certifications are only valid for the particular job opportunity, the alien named in the application (unless substition was approved prior to July 16, 2007), and the area of intended employment. Note: This conflicts with AC-21 which permits substitution to similar job in any area of employment 180 days after filing applications for adjustment of status.

(11) Detailed rules are set forth involving denials, fraud, willful misrepresentation, suspension, criminal indictments, and disbarment. Note: The disbarment provisions are new to PERM.

(12) DOL has the right to request any information the CO deems relevant, including the existence of a bona fide job opportunity and the disclosure of payments. Note: The clear implication is that the payment of attorney fees by the alien, even for representation of the alien, may be seen as an extension of grounds for denial based on lack of a bona fide job opportunity.

This is a brief analysis of the July 16, 2007 amendment. Further, more detailed analyses will follow in future postings!