New 180-Day Validity Period for Approved Labor Certifications

The recent DOL regulation establishes a 180-day validity period for approved labor certifications.  Labor certifications approved prior to July 16, 2007 will be valid for 180 days after that date, OR until January 12, 2008.  A labor certification approved after July 16, 2007 will be valid for only 180 days.  An I-140 immigrant petition must be filed within the validity period of the approved labor certification.

There is an exception to the rule concerning labor certification validity.  The USCIS will accept an amended, or duplicate I-140, filed with a copy of a labor certification that has expired only if the original I-140 petition was submitted with an original labor certification that was valid at the time that the earlier petition was filed. This type of filing is made in very limited circumstances, such as when there has been a change in corporate ownership (successor-in-interest) since the filing of the original I-140; OR where the employer is requesting a different visa classification for the same beneficiary; OR where the original labor certification has been lost.

Other Issues Addressed in the DOL's New Regulation

The new regulation requires employers to pay all costs of preparing, filing, and obtaining labor certification.  Employers will no longer be permitted to transfer to the foreign national employee any of the employer's costs incurred in the labor certification or application process.  In addition, the final rule prohibits an employer from receiving payment of any kind as an incentive or inducement to file, or in reimbursement of the costs of preparation and filing of, a labor certification application, including covering the costs of the employers' attorneys' fees. Employers are also prohibited from reducing the wages, salary or benefits of a foreign national named on a labor certification application for any expenses related to the preparation and filing of the application. This prohibition includes the payment by the foreign national of attorney fees, recruitment, or other activities related to labor certification.

There are two exceptions to the prohibition on payments.  First, where the foreign national hires his or her own attorney in connection with the labor certification application process, the foreign national may pay his or her own costs including attorneys' fees, except that where the same attorney represents both the foreign national and the employer, such costs shall be borne by the employer.  This would appear to limit a foreign national's individual attorney, if any, to reviewing the application in order to protect the foreign national's interests in the labor certification process.

The rule also explicitly prohibits the sale, barter, and purchase of applications and approved labor certifications. The rule reinforces existing law pertaining to the submission of fraudulent or false information, clarifies current DOL procedures for responding to incidents of possible fraud, and institutes several enforcement mechanisms.

Employers and foreign national employees will no longer be allowed to benefit from the use of an approved, but previously unused, labor certification application by substituting a different foreign national at the time of filing the I-140 petition.

Employers will be required to file an I-140 petition based on an approved labor certification application within 180 days of certification. Prior to this new rule, there was no deadline for filing an I-140 petition based on an approved labor certification application. 

Finally, employers may no longer pass the costs and fees associated with the labor certification process on to the foreign national beneficiaries. This rule appears to prohibit employers from having employees sign reimbursement agreements whereby the employee has to repay labor certification costs if the employee voluntary terminates employment within a certain time period. Accordingly, employers should review their current immigration policies and agreements with counsel to ensure that they comply with the new requirements.