NewsFlash! LC Substitution Termination Regulation Moves to OMB
Posted Feb 02, 2007
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There is a rumor traveling through the immigration world that the labor certification (LC) substitution process has ended. This is NOT correct, but, as is often the case, this rumor may have some basis in truth. What has occurred is that the proposed U.S. Department of Labor (DOL) regulation that would terminate the labor substitution process and, among other provisions, have a limited duration for labor certifications (LCs) has moved forward from the DOL to the Office of Management and Budget (OMB). Thus, the proposed regulation apparently is progressing through the system. The precise wording of the proposed regulation that was sent to OMB is not known at this time.
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Background of Elimination of LC Substitution
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The proposed regulation was reported to our readers when it was first published a year ago, in February 2006. The provisions were explained in our article, DOL Proposes Elimination of LC Substitutions and Other Changes, available on MurthyDotCom. Some objections that are shared by many employers and others are also explained in the article. During the regulation comment period, we at the Murthy Law Firm communicated our concerns and comments, as did the American Immigration Lawyers Association and many clients of our firm. Previously, approved labor certifications (LCs) were valid indefinitely. In the DOL regulation from a year ago, the DOL proposed a 45-day limit on LC validity. Our position, essentially, is, while we decry fraud and support efforts to eliminate fraud in the immigration process, the regulation as initially proposed was in many ways overbroad and too blunt and gave too little time for the LC validity. Accordingly, it fails to address problems with the labor certification process.
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DOL Forwards Regulation to OMB
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Currently, the DOL has reviewed the many comments submitted on the proposed regulation. They may have made changes to the regulation in light of those comments. The current form of the regulation is not publicly available. The DOL, as required, has submitted the regulation to the OMB.
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Timing of Proposed Regulation in Federal Register
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The OMB generally has 90 days to review a regulation. After their review, they could approve it, reject it, or send it back for further revisions. Once the OMB approves a regulation, it is returned to the initiating agency for final signature. It is then published in the Federal Register. Sometimes, regulations are effective immediately upon publication. In other situations there is an established lag time (usually 30 or 60 days) before the regulation is effective.
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How Does this Affect my LC Substitution Case?
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We reiterate our previously stated conclusion that those with bona fide LC substitution cases should consider filing them without further delay. At issue is a DOL regulation; not a USCIS regulation. Therefore, it has a certain limit to its scope. The initial version eliminated substitution through the DOL, but not through the USCIS at the I-140 stage. It tried to address the possibility of substitution at the USCIS by placing an "expiration date" of 45 days on labor certifications and requiring that I-140s be filed within that timeframe. Therefore, it would seem likely that the regulation, even if finalized, would not impact any labor substitution case pending with or approved by the USCIS.
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Conclusion
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When published, this regulation will have a dramatic effect on any employer that uses the LC process in its business. We trust that the DOL has taken into account the many comments sent to them by employers, concerned organizations, and others, on their proposed regulation, while drafting their revised proposal to send to OMB. What the final language contains and how it will impact employers and employees who use the LC process will be revealed in time.
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