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DOL Substitution Rule - A Major Flaw

by Pravinchandra J. Patel

The DOL recently promulgated a new rule, which, inter alia, eliminated the practice of substitution of aliens on pending permanent labor certification applications, established an expiration date for certified labor certifications, etc. See 72 FR 27903 - 27944, dated May 17, 2007, effective July 16, 2007.

This brief article is intended to point out a major flaw in the regulatory language that creates an interpretive conflict.

The most important basic point is that the new rule takes effect on July 16, 2007, and therefore July 16, 2007 becomes pivotal for interpreting the various provisions that amend Part 656 in the Code of Federal Regulations, Volume 20 (20 CFR 6565). The new rule adds two new sections-656.11, 656.12, and amends five existing sections-656.3, 656.24, 656.26, 656.30, and 656.31.

This article relates to only two provisions- 656.11 and 656.30(e)(2) in the new rule. The specific language in 656.11 states as follows:

656.11 Substitutions and modifications to applications.
   (a) Substitution or change to the identity of an alien beneficiary on any         application for permanent labor certification, whether filed under this part or         20 CFR part 656 in effect prior to March 28, 2005, and on any resulting         certification, is prohibited for any request to substitute submitted after         July 16, 2007.
   (b) Request for modifications to an application will not be accepted for         applications submitted after July 16, 2007. [Emphasis added.]
It is common knowledge that historically both the DOL and USCIS allowed substitution of new aliens who otherwise qualify under the requirements stated on the applications, in place of the original (or even substituted) aliens. To accomplish that result at the DOL stage, the employer submitted an application or a request with the newly prepared 750B form. The local or the regional office of the DOL then verified both the requirements stated on the originally submitted 750A and B forms, and also data on the new 750B form, in light of the new evidence which must demonstrate that the new alien sought to be substituted in place of the one named on the original application meets the originally stated requirements, and then approve substitution only if the new alien qualifies.

The new rule, and the language of the new rule, should be analyzed, interpreted and understood in the context of that historical practice.

Under the new rule, specifically 656.11, substitution or change to the identity of an alien beneficiary on any application for permanent labor certification is prohibited after July 16, 2007. That immediately raises the question as to how to implement this rule for any pending requests for substitution that are already submitted to DOL. To have an orderly transition for any pending labor certification applications, 656.11(a) makes it absolutely clear that the prohibition applies only if the request for substitution is submitted after July 16, 2007. This necessarily means that the DOL will adjudicate a request for substitution that is submitted on or before July 16, 2007.

This rule does not say anything about the time that DOL office may take in verifying the request and the submitted documentation. Nonetheless, there cannot be any doubt that a decision to allow or not to allow substitution could come after July 16, 2007, particularly in requests that may have been submitted a few days or even a few weeks prior to July 16, 2007. Indeed, it does not matter how long a DOL office may take in issuing its decision on the request for substitution. The only relevant fact is that the prohibition of substitution applies under 656.11(a) only if a request "to substitute [is] submitted after July 16, 2007."

This interpretation is further supported by the language of 656.11(b), which states that "Request for modifications to an application will not be accepted for applications submitted after July 16, 2007." In other words, a request for substitution is allowed in any labor certification applications submitted before July 16, 2007. Thus, theoretically, a combined reading of subsections (a) and (b) of 656.11 clearly and inescapably shows that a request for substitution may be allowed in any labor certification application that is filed before July 16, 2007, and that the prohibition of substitution does not apply if a request to substitute is submitted prior to July 16, 2007.

Now, let us consider the provision that prescribes the rule regarding the "validity of and invalidation of labor certifications," of 656.30. Besides providing a 180-day rule of expiration of labor certifications after July 16, 2007, see 656.30(b), it prescribes the "scope of validity" of any certifications in 656.30(c). The critical language in 656.30(c)(2) is the focus of this article, for it states:
656.30 Validity of and invalidation of labor certifications.
    (c) Scope of validity .
        (1) *****
        (2) A permanent labor certification involving a specific job offer is valid only         for a particular job opportunity, the alien named on the original application         (unless a substitution was approved prior to July 16, 2007), .... [Emphasis         added.]
Thus, the provision in 656.30(c)(2) declares that a labor certification on which there is a substituted alien would be valid only if the substitution was approved prior to July 16, 2007. In other words, it would not be valid if was approved after July 16, 2007. This rule is thus in direct conflict with the provision in 656.11, which clearly allows substitution as long as the request for substitution is submitted prior to July 16, 2007.

Obviously, a request for substitution submitted even one day prior to July 16, 2007 is permissible, it must be adjudicated on its one merits and, if allowable under the former adjudicative criteria, must be allowed, regardless of when the request for substitution is approved. It could possibly take place a few weeks or a few months after July 16, 2007, but, whenever it happens, it should not have any negative effect on the validity of the certification. Yet, 656.30(c)(2) could render such certifications invalid simply because the substitution was allowed after July 16, 2007.

I believe this is just a drafting flaw in the new rule that was not intended. Obviously, the new rule would come into effect only on July 16, 2007. In other words, up until July 16, 2007, the old rule prevails, and the practice under the old rule freely allows substitution. Therefore, as long as the old rule and the old practice govern, substitution is the norm and an employer has the right to request it. If such a request is "submitted" any time prior to "July 16, 2007," it does not matter when it is adjudicated. In other words, even if it is adjudicated and substitution is allowed a few days or a few weeks or a few months after July 16, 2007, the validity of the certification cannot be and should not be in doubt.

Finally, in view of the apparent conflict in the two provisions, the DOL will have to come out with either an amending regulation, and amending the language of 656.30(c), which could be done without any notice and comment period, or, as has been done in the past, by issuing a clarifying memorandum to resolve the conflict and create a smooth and efficient transition procedure. On the other hand, if a necessary clarification is not issued in a timely manner, it could result in unnecessary negative determinations, which in turn could lead to unnecessary litigation. Obviously, it would not be in the interest of any one not to be proactive and create a procedure that would resolve a looming conflict in the implementation of the new rule.

About The Author

Pravinchandra J. Patel, Esq. can be reached at 1554 Sherwood Drive, East Meadow, New York 11554; (516) 565-2665; email: For over two decades, he has authored/compiled and regularly updated source materials for fellow immigration attorneys through his immigration books, see The opinion and information expressed in this article is not intended to provide guidance in any specific case or to any individual. Rather, it is intended for general information, and is subject to change in the future, if necessary, to reflect any subsequent contrary policy decision or guidance by BCIS.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.