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Proposal to End LC Substitution and Require Prompt I-140 Filing
Posted
Aug 26, 2005
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The U.S. Department of Labor (DOL) introduced a regulation in mid-August
2005 proposing an end to the procedure known as labor certification (LC)
substitution. The proposed regulation has cleared the Office of Management
and Budget (OMB) and will be returned from OMB to the DOL. From the DOL, it
will be sent for publication in the Federal Register as a proposed rule.
There will be an opportunity for public comment on the proposed rule. It is likely
to receive a great deal of response, including comments from us at The Law Office of
Sheela Murthy, since there are many troubling issues with the proposal.
Areas of concern are outlined here for our MurthyDotCom and
MurthyBulletin readers.
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Overview of the DOL Proposed Rule
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In addition to the elimination of LC substitution, the regulation proposes a
deadline of 45 days for an employer to file the labor certification in
support of an I-140 petition. Since this is a DOL regulation, it can only
pertain to the labor certification and not specifically to the I-140. The
wording of the abstract on this regulation, however, appears to state that the
labor certification must be filed with an I-140 within 45 days in order to
be valid. Thus, it seems that labor certifications, which are now valid
indefinitely, would have some type of expiration date under the proposed
regulation. We adamantly oppose this 45-day requirement as unjust,
impractical, and unrealistic for reasons we will explain below.
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What is LC Substitution?
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The substitution process permits an employer to substitute the beneficiary
of a labor certification. A typical scenario is when a company files a
labor certification for employee A and Employee A leaves the company. Employee B
is substituted for employee A in the case. Employee B must
have the required education and experience set out in the labor
certification. Additionally, employee B must have possessed the required
education and experience as of the date the labor certification was filed.
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Background and Reasons LC Substitutions Should
Continue
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The problem with substitution is that, as with any procedure, there are
those who try to take advantage and misuse the process. The DOL is
trying to reduce the opportunities for fraud. In keeping with this, the
proposed regulation expressly prohibits the sale, barter, or purchase of
permanent labor certifications, as well as related payments. They will
propose enforcement mechanisms for these prohibitions.
©MurthyDotCom
We understand that there are abuses. We agree that labor certifications
should not be sold. We concur that the substantial money that can be made in
the sale of labor certifications tends to attract the unscrupulous and
fraudulent. The good should not be discarded with the bad, however. There
are legitimate labor substitution cases. An employer that invests time,
effort, and finances into obtaining a labor certification approval for an
employee should be able to use that certification for a new employee if the
first employee quits or, otherwise, if the employment relationship has been
terminated. If the case could have been filed for Employee B just as well as
for Employee A, there is really no reason not to allow Employee B to substitute
for Employee A. Better mechanisms could be devised to determine whether there
has been a sale, or if the company is filing labor certifications strictly
for the purpose of using them for substitution cases at a later point. There
are many methods by which this could be accomplished, including requiring
proof of the existence of the initial beneficiary and tracking the volume of
substitution cases filed by any particular sponsoring employer.
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We note that the need for the substitution process is tied to the many years
of delay within the DOL system. Employers were desperate to bring in highly
skilled candidates and offering to help with a previously-approved LC was a
win-win solution for all concerned. Now, with faster PERM processing, the
need for substitution will likely reduce. Even with PERM, however, the
process remains expensive and time consuming for most employers and
employees. Eliminating the substitution process simply places another burden
on U.S. employers and does not serve the purpose of protecting U.S. workers.
©MurthyDotCom
Rule for Pending LC Substitution Cases
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The information that is available regarding this regulation does not address
substitution cases filed prior to any change in regulation. This likely
means that those who have already filed LC substitution cases before the
publication of this regulation will be allowed to continue to take advantage
of it.
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Introduction of the 45-Day Rule to File I-140
Petitions
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The proposed regulation contains a provision requiring that the approved
labor certification be filed in support of an I-140 petition with the USCIS
within 45 days! This, as noted above, is an enormous departure from the
long-standing policy that labor certifications are valid indefinitely. This
change also is, in the wording of the DOL, designed to reduce the likelihood
of the submission of fraudulent applications. This type of time limit is
simply not workable in the real world. We would urge the DOL to reconsider
this short deadline and design a system that will eliminate fraud without
penalizing legitimate applicants who may have waited for DOL action for
years.
©MurthyDotCom
Why are 45 Days Grossly Insufficient to File the
I-140 Petition?
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We believe that the U.S. Department of Labor's proposal to allow only 45
days to file the I-140 immigrant petition fails to consider business
realities and the government's own time taken to process cases. Below is an
outline of some valid arguments as to why we believe the Department of Labor
needs to reconsider its position.
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First, the time required to compile the necessary information is often more
than 45 days. The filing of an I-140 petition requires the interaction of
the employer / sponsor, the attorney, and the beneficiary. The employer must
supply information regarding the company and its finances. The beneficiary
must supply proof of his/her qualifications. The attorney must explain the
law and the procedures, then compile the evidence submitted to prepare the
case that the employer must understand, review, approve, and sign off on
before filing the I-140 petition with the USCIS. While some of the
documentation and information may be obtained in advance, financial and time
considerations often make it impractical for all concerned.
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Second, the financial considerations involved will require advance planning
if there is a 45-day limit. Given that labor certification processing times
at the Backlog Processing Centers (BPCs) are uncertain and untraceable, much
of the work required for the I-140 petition process generally awaits the
receipt of the labor certification approval. Most employers are not willing
to incur costs for its preparation in advance since an employee may decide
to quit or leave the country at any time. So the time and costs involved in
hiring outside, competent counsel often become prohibitive for the parties.
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Third, the combined effort
of the individuals involved with the I-140 can be slowed due to normal human
events such as vacation, illness, business travel, and financial concerns
related to the legal and filing fees that may be due.
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Fourth, if documents are
needed from abroad, the entire timeframe will likely extend even further.
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Fifth, there can be
legitimate delays in obtaining financial documents from the employer for
the most recent tax period, even if the taxes are filed within the
permitted timeframes.
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Sixth,
retrogression and concurrent filing issues affect the decision regarding the
timing of the I-140 filing. If the case is eligible for concurrent filing,
the beneficiary is likely to elect to take this route. The preparation of
the I-485 for the beneficiary and his/her family may, however, require more
than 45 days. There may be waiting times simply to get an appointment with
the physician for the medical exam, delays in obtaining proper birth and
marriage documents from abroad, or situations in which a person who is
abroad needs to return to file the I-485. There are innumerable variations
on this theme.
In
response, the DOL might say to
just file the I-140 if the I-485 cannot be filed within the 45 days. There
is a problem if this is the approach. Once the I-140 is filed, the I-485 filing
must wait until the I-140 receipt notice is issued. With retrogression, it
may not be wise to file the I-140 and hope that the receipt notice arrives
before the visa numbers retrogress. Forcing a beneficiary to make this
choice, and potentially delay the filing of the I-485 for a substantial
number of years, is simply unfair, especially considering that the DOL
historically has taken several years to approve labor certifications, though
nowadays they are starting to approve some PERM cases faster.
©MurthyDotCom
Even suggesting such a low estimate of 45 days to file the I-140
petition seems incongruous considering business realities as outlined above
and considering that, in the government processing context, the USCIS has
not been able to meet its target goal of adjudicating simple petitions and
applications within six months!
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Possible Solutions to Help All Parties
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If the DOL has found that delays in filing the I-140 petition are tied to
fraud, there are a number of alternatives that would be far better than
setting a 45-day limit. While we would prefer no limit, the most obvious
solution would be to set a substantially longer limit, of at least six
months or a year, with perhaps a procedure for allowing filings to exceed
the deadline if there is reasonable justification for additional time. We do
not see a direct connection between fraud and a delay in filing. The delay
can be attributable to a number of genuine circumstances as outlined above.
If there is fraud, then procedures can be put into place to detect and
prevent it. If money is needed for investigations, then efforts to obtain
proper funding should be a priority, rather than creating arbitrary, blunt
rules that penalize the many legitimate cases with the few that are fraudulent.
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