U.S. IMMIGRATION SYSTEM | hOT TOPICS
LABOR CERTIFICATION APPLICATION DEVELOPMENTS
The first step in most employment-based cases for
permanent residence is the labor certification application process.
Essentially, this is the process through which the employer needs
to perform a certain mandated recruitment and advertising effort
so as to confirm to the U.S. Department of Labor whether or not
there are any able, willing, and minimally qualified U.S. worker
applicants for the offered position (as well as to show that the
employment terms will not harm the wages and working conditions
of similarly employed U.S. workers).
The Department of Labor has recurrently expressed its concern that
certain current provisions of the labor certification application
process could lead to abuse or fraud and deceit. On May 17, 2007,
the Department of Labor issued revised regulations as a putative
anti-fraud initiative that alters current labor certification application
procedures in five (5) specific ways:
1. It prohibits the substitution of foreign nationals, requiring
instead that the labor certification application be valid solely
for the foreign national named on the application;
2. It requires the employer to file its I-140 immigrant visa petition
within 180 days of the approval date of the labor certification
application;
3. It overtly and forcefully bans the sale, barter, and purchase
of labor certification applications;
4. It creates increased exposure for employers and their attorneys
or agents to debarment from the filing of future labor certification
applications upon commission of fraud, the wilful provision of false
statements, or a pattern or practice of noncompliance with labor
certification application requirements;
5. It requires employers to take full financial responsibility for
all fees and associated costs - including attorneys fees - arising
from the labor certification application process.
Points 1-4, appearing above, are rather self-evident and, frankly,
will not require much alteration in our clients' existing pattern
of action because the parties with whom we work follow through in
obtaining permanent residence in a transparent and timely manner
for the foreign national listed on the labor certification application.
But point #5, above, needs to be understood as it represents a significant
divergence from the flexibility that has traditionally existed that
has allowed the employer and its employee to agree between themselves
on the allocation of financial responsibility for the labor certification
application process.
Effective July 16, 2007, the following provisions become
effective:
• All costs
associated with the labor certification application process - such
as recruitment and advertising costs - can only be paid by the employer;
• All attorneys fees associated with the labor certification
application process can only be paid by the employer;
• Standard I-485 adjustment of status application to $1,010
(from $395, with fingerprints);
• The employer cannot be reimbursed by the foreign national
for the fees and costs arising from the labor certification application
process;
• This exclusive assignment of financial responsibility to
the employer covers only the labor certification application process
and it does not extend to the other stages of a case for permanent
residence;
• In rare (and generally counterproductive) instances in which
the employer and the foreign national each retain their own attorney,
the foreign national could then be responsible for his/her own attorneys
fees. But in the far more accepted, standard practice in which one
attorney serves the immigration needs of both the employer and the
foreign national, the employer alone has responsibility for all
fees and costs associated with the labor certification application
process;
• These provisions become effective on July 16, 2007, and
apply fully to pending or unfiled cases. In short, even if a contract
was concluded prior to the Regulation's effective date, all labor
certification application fees and costs arising after July 16,
2007, needs to be borne exclusively by the employer
In our own practice experience, the employer either directly pays
for all fees and costs involved in the labor certification application
process or reimburses the foreign national for these charges. In
instances in which the employer has heretofore reimbursed the foreign
national, matters need to be revised so that payment is made directly
from the employer to the attorney and/or the recruitment vehicle
(i.e., newspaper ads, etc.) In those instances in which the foreign
national has been the responsible paying party to a labor certification
application, those responsibilities will need to cross-over to the
employer.
I personally find these new provisions regarding which party can
pay for the labor certification application process to be unwarranted
and concerning. This intrusion into contractual relationships might
well be on shaky legal grounds and the litigation entity of my professional
association, the American Immigration Law Foundation, is currently
considering a law suit to enjoin these provisions. This lawsuit
may succeed in the future, but in the short term, effective in mid-July,
these provisions do become law and we will be taking active and
appropriate steps to ensure that our clientele act in full conformity
with their legal obligations.
In the immediate future, we will be systematically going through
our existing labor certification application files to ensure that
the payment arrangements fully correspond to these new regulatory
provisions. In instances in which the employer is not the responsible
party and also looking out into the future, we will be affirmatively
contacting the parties to effectuate the required change as mandated
by the Department of Labor's regulations. In those presumably rare
instances in which an employer is unwilling to undertake the financial
obligations for the labor certification application process, we
will need to explore alternative strategies for permanent residence
and/or to discuss the full and serious implications of this reticence
to assume financial responsibility for the labor certification application
process.
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