FAQs on the LC Substitution Proposed Regulation
Posted Feb 24, 2006
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Subsequent to the February 13, 2006 release of the U.S. Department of Labor (DOL)'s proposed regulation addressing labor certification (LC) substitution cases and other matters, we at the Murthy Law Firm have been receiving questions on pending and potential labor substitution cases. There is mounting concern regarding the impact the regulation will have on existing labor substitution cases and on those to be filed in the near future. Readers who are unfamiliar with this important proposed regulation should review our February 17, 2006 MurthyBulletin article, DOL Proposes Elimination of LC Substitutions and Other Changes, available on MurthyDotCom.
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Below are some frequently asked questions on the LC Substitution Proposed Regulation; each followed by our response and analysis.
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Q. Are labor substitution cases still permitted?
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A. Yes, for now. The regulation is, as of this writing, in the stage of a Proposed Regulation. It was published on February 13, 2006. There is a 60-day comment period, which ends on April 14, 2006. No changes can go into effect until after the comment period. At the end of the comment period, the DOL must review and consider the comments it receives. It is likely that there will be a great many comments. Thus, there is no way to predict how long it might take for this regulation to become final, whether the final version will contain the provisions prohibiting LC substitution, or, in fact, if it will be finalized at all. Not all proposed regulations become final.
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Q. I have a pending green card case based on a substituted labor. Do I need to worry about this proposed regulation?
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A. It would not seem to affect pending green cards based on substituted labor, as long as the substitution was not being requested through the DOL. This regulation prohibits substitution through the DOL. So, if it were to go into effect, it is possible that it would end all pending requests for substitution of beneficiaries made to the DOL.
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Most substitution requests are made via the USCIS at the I-140 petition filing stage. This involves labor certifications that have already been approved, and the substitution request is made in the filing of the I-140 petition at the USCIS. The regulation attacks this process by making labor certifications valid for only 45 days. Thus, all I-140s would have to be filed within 45 days of labor certification approval. Even if the regulation were to pass, however, it does not appear that it would have the power to terminate pending I-140s (even if based on LC substitution). If the cases are proper when filed, it does not seem that the regulation would extend to pending USCIS cases since the proposed regulation is a DOL, not a USCIS, regulation. If it were a USCIS regulation, then it could impact pending I-140 cases for which the labor certification is over 45 days old at the time of filing - not just LC substitution cases. Those cases with approved I-140s do not appear to be vulnerable to this proposed regulation.
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Q. If my substitution-based case is not directly affected by the regulation, is there anything I need to worry about at all?
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A. The regulation is a reflection of the problems that have come to light with the LC substitution cases. There is a noticeable connection between some labor substitution cases and fraud. Thus, those with substitution cases need to take care to ensure they have not gotten involved with unscrupulous individuals or companies. In light of the concerns over substitution cases, beneficiaries may experience higher levels of scrutiny in their cases. Such individuals may want to read our MurthyBulletin articles Strategies to Consider if Sponsored by Company in Trouble and Beware of Fraudulent LC Substitution Cases, both available on MurthyDotCom.
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Q. Where can I see this proposed regulation?
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A. It was published in the February 13, 2006 Federal Register. The Federal Register is available online. The particular Regulation is available in text and PDF format, under the Employment and Training Administration. It is entitled, Labor Certification for the Permanent Employment of Aliens in the United States; Reducing the Incentives and Opportunities for Fraud and Abuse and Enhancing Program Integrity.
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Q. I would like to comment on this proposed regulation. How do I do that?
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A. The deadline to submit comments to the DOL is April 14, 2006. The addresses and details for submitting comments, either by regular mail or eMail, are at the beginning of the proposed regulation. Please voice your concern by eMailing the DOL, preferably through your employer since well reasoned comments are given weight and a large number of comments will be given due consideration. Procedures for comments follow.
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To Submit Comments on the Regulation
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The DOL allows people to submit comments, identified by Regulatory Information Number (RIN) 1205-AB42, by any of the following methods:
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Federal eRulemaking Portal : Follow the WebSite instructions for submitting comments.
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eMail : Comments may be submitted by eMail to (fraud.comments@dol.gov). Include "RIN 1205-AB42" in the subject line of the message.
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Mail : Submit written comments to:
Assistant Secretary, Employment and Training Administration
U.S. Department of Labor
200 Constitution Avenue, NW
Room C-4312
Washington, DC 20210
Attention: John R. Beverly, Interim Chief, Division of Foreign Labor Certification
(Note : Because of security measures, mail directed to Washington, DC is sometimes delayed.)
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The DOL will consider only those comments postmarked by the U.S. Postal Service or with proof of delivery from a service such as UPS or Federal Express on or before the deadline for comments.
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Instructions : All submissions received must include the RIN 1205-AB42 for this rulemaking. Receipt of submissions, whether by U.S. Mail or eMail, will not be acknowledged. Because DOL continues to experience occasional delays in receiving postal mail in the Washington D.C. area, DOL recommends that those wishing to submit their comments do so via eMail.