Labor Substitutions : Still Possible in February 2007
Posted Feb 09, 2007
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The Murthy Law Firm issued a February 2, 2007 NewsFlash on movement in a proposed U.S. Department of Labor (DOL) regulation that seeks to eliminate the labor substitution process. We remind MurthyDotCom and MurthyBulletin readers that, as of this writing, and until any such regulation becomes effective, labor substitution cases are still possible. Therefore, those companies that have pre-approved labor certifications (LCs), and those individuals who have been offered the opportunity to utilize the substitution process may wish to take steps to file their cases at the earliest opportunity. While the current wording of the regulation is not known, since it is a DOL regulation, its scope is inherently limited to matters within DOL control. Accordingly, while nothing is guaranteed, it is quite possible that the regulation will not be able to interfere with labor substitution cases that have already been filed with the USCIS. It would seem that a case with an approved I-140 petition would be on even safer ground, as there was nothing in the proposed regulation that would have affected such cases.  
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LC Substitution - Pros and Cons
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Substitution cases have been at the root of certain fraud problems, which is part of the DOL's motivation for the regulation. Thus, it is likely that all such cases will be closely scrutinized. This may be even more true for those cases filed in an effort to beat the regulation. Companies that legitimately filed labor certifications may find substitution to be a valuable procedure in instances where LC approvals are not needed for the named individuals. This saves time, money, and is a very valuable employee-recruiting tool to attract good candidates to fill labor shortages.
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Be Wary of the Unscrupulous
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Foreign nationals should take care in choosing their employers, as there are some that engage in the sale of labor substitutions. It is likely that the movement in this regulation will cause frenzy among certain companies that may try to take advantage of unwary individuals. We reiterate our warnings set out in our September 9, 2005 MurthyBulletin article, Beware of Fraudulent Labor Substitution Cases, available on MurthyDotCom. Moreover, before taking advantage of a pre-approved LC, one should be certain that s/he meets all of the requirements of the position at a point before the priority date, and that the company has the ability to pay the prevailing wage.
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Conclusion
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Hopefully, the DOL will carefully consider the comments sent by employers, American Immigration Lawyers Association (AILA) members, and AILA and other interested organizations whose memberships work with immigration cases each day. Some of the provisions in the regulation simply are not realistic; among them the 45-day expiration of the labor certification. At this point, LCs do not have expiration dates. To go from no expiration date to a 45-day limit simply does not fairly consider real-world scenarios, including the need to coordinate attorneys, employers, and beneficiaries for finalization of the I-140 filings.