DOL Regulation from July 16, 2007 / AILF Seeks Plaintiffs
Posted Jul 27, 2007
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The U.S. Department of Labor (DOL) issued a series of FAQs on July 16, 2007,with regard to Final Rule to Reduce the Incentives and Opportunities for Fraud and Abuse and Enhancing Program Integrity of May 17, 2007. This is the regulation that ended the practice of labor substitution. As explained in our May 16, 2007 MurthyBulletin article LC Substitution Reg Effective July 16, 2007, the regulation does more than just eliminate substitution cases. In addition to terminating substitution of beneficiaries in labor certifications, the regulation addresses other matters, such as expiration of labor certifications after 180 days from the date of certification and a prohibition of certain payments made by foreign nationals in connection with labor certifications, including attorneys' fees and costs for processing the PERM part of the "green card" case. The DOL's FAQs answer some of the questions that have been created by this new regulation.
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Labor Certification Substitution Terminated
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MurthyDotCom and MurthyBulletin readers are reminded that the DOL regulation terminated labor certification substitution of beneficiaries requested and filed at the USCIS after July 16, 2007. In other words, a permanent labor certification is valid only for the particular job opportunity, the foreign national named on the original application, and the area of intended employment stated on the application (Form ETA 9089). It is no longer possible to request substitution of a new foreign national beneficiary into a pending or approved labor certification.
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Prohibition on Payments by Foreign Nationals
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The new DOL regulation prohibits beneficiaries from making direct payments or reimbursements of employer's expenses of any kind for any activity related to obtaining permanent labor certification. The one exception is for a party with a legitimate, pre-existing business relationship with the employer, which was described in our earlier MurthyBulletin articles on this matter.
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Prohibited payments include, but are not limited to, monetary payments, deductions from wages or benefits, and any in-kind payments. Most importantly, this includes the prohibition against the foreign national beneficiary paying the employer's attorney fees in connection with the labor certification application. Any agreements of reimbursements between the employer and its beneficiaries are in violation of the current DOL regulations.
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As clarification for the transition to this requirement, if an attorney entered into a legal representation agreement prior to July 16, 2007 for the foreign national to pay a legal fee, but the payment occurs after July 16, 2007, the parties would be able to honor such an agreement. The attorney must fully explain on the labor certification application, however, that the payment obligation accrued prior to the effective date of this regulation. It should be noted that, since this is a new requirement, it is not clear how it will impact the labor certification. At a minimum, if choosing this approach, it is necessary to be able to fully document that the agreement was entered into before July 16, 2007, and that the monetary obligation accrued prior to July 16, 2007.
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AILF Intends to Initiate a Lawsuit on this Matter
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Critics of the new DOL prohibition on payments of attorney fees observe that the provision may violate certain fundamental provisions under law as available under the U.S. Constitution, including the right of a party to freely select his or her own attorney, as it effectively deprives the foreign national of that ability in a matter that is of direct interest to him or her.
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In this connection, the American Immigration Law Foundation (AILF) has expressed an interest in filing a lawsuit to fight this prohibition. AILF is seeking potential plaintiffs for this lawsuit. Please eMail us at ailf_lcsub@murthy.com if you think you have an interest in being a plaintiff and we will forward the names to AILF, once collected. Employers should seriously consider this opportunity. AILF often does not charge for filing such lawsuits, but appreciatively accepts contributions to continue their fight to protect causes that are consistent with the rule of law.
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