New DOL FAQ : Round 8, Lost Labor Certifications
Posted Apr 07, 2006
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The U.S. Department of Labor (DOL) issued a new FAQ related to PERM. It is FAQ Round 8. This most recent FAQ, as well as earlier FAQs, are all available on the DOL WebSite. FAQ Round 8 is related to requests for duplicate labor certifications. This applies both to PERM cases and to pre-PERM cases. The procedures are appropriate when a labor certification has been lost or was never actually received following approval or certification by the DOL. For obvious reasons, the labor certification original approval, once received, should be carefully safeguarded to avoid the need to request a duplicate.
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Pre-PERM : ETA-750s
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USCIS Must Make Request
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Before PERM, labor certifications were filed using Forms ETA-750A and 750B. There are different procedures for requesting a duplicate ETA-750, as opposed to the PERM Form ETA-9089.
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For the ETA-750, any request for a duplicate must be initiated by the USCIS. The employer or employer's representative cannot contact the DOL and ask for a duplicate. The USCIS must make the request to the DOL. Therefore, the employer or employer's representative needs to request the USCIS to, in turn, make a request with the DOL. The DOL will send the duplicate labor certification to the USCIS, not to the employer or the representative.
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Procedures : Make Request with I-140
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In the FAQ, the DOL set forth a recommended procedure for making this request in connection with an I-140 petition for foreign worker. The FAQ specifies that the I-140 should be filed with a brightly-colored cover sheet baring the heading "LOST OR MISPLACED LABOR CERTIFICATION, REQUEST FOR DUPLICATE, DO NOT REJECT." The sheet should then contain a list of identifying information, provided in the FAQ, including priority date and a printout of a screenshot, showing the case has been certified, as well as the reason/s the duplicate is required. Reasons include never receiving the original in the mail.
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No Concurrent Filings
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If the labor certification is missing, only the I-140 petition can be filed. Even if the individual would otherwise be eligible to file the I-485 (and with retrogression, many are not eligible), the I-485 application will not be accepted. The FAQ encourages those requesting duplicate labor certifications to wait for I-140 approval before filing the I-485.
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PERM : ETA 9089
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Direct Request or USCIS Request
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The procedures are different for one to obtain a duplicate labor certification under the PERM system. This request can be initiated by the petitioning employer, who may either contact the DOL or ask that the USCIS help with the request. The procedures through the USCIS are similar to those for pre-PERM cases.
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Option : Make Request with I-140
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If making the request through the USCIS, the I-140 petition needs a cover sheet with the same "LOST OR MISPLACED" language as used with the ETA-750. The cover sheet needs to contain routine identifying information and state whether the employer wants the USCIS to initiate the request for the duplicate labor certification, or that they have contacted the DOL directly. A reason for making the request is also needed.
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RFE for Signature
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In PERM cases, once the USCIS receives the duplicate labor certification, they send the employer or attorney a Request for Evidence (RFE) in order to obtain the required employer's signature on the duplicate. The employer must return the signed duplicate with the RFE.
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No Concurrent Filings
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As before, when the labor certification is missing, only the I-140 (with request for duplicate) can be filed. No I-485 can be filed until the matter is resolved, even if the priority date is current. The USCIS again requires that the I-485 await the approval of the I-140.
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Conclusion
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The DOL is cautious about issuing duplicate labor certifications. The labor certification permits only one beneficiary per certification. The need for originals is designed to avoid the possibility of multiple green card applications based on one labor certification.
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While the procedures set out in the FAQs are helpful, it should be clear that requesting a duplicate is not something to be done routinely. If labor certifications are handled carefully, it should only be necessary to take these steps if the original is lost in the mail or otherwise is never delivered to the attorney or employer.
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