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DOL Proposed Rules to Restrict Time Allowed to File Immigration Petition After Labor Certification

           On Feb. 10, 2006, the Employment and Training Administration (ETA) of the Department of Labor (DOL) published a Notice of Proposed Rulemaking on the Federal Register with request for comments on the proposed rules.  The goals of the proposed rules are to enhance program integrity and reduce the incentives and opportunities for fraud and abuse related to the permanent employment of aliens in the US. 


            According to the Summary of the Notice, the proposed Rules contain four major regulations.  First, DOL is proposing to eliminate the current practice of allowing the substitution of alien beneficiaries on permanent labor certification applications and resulting certifications. 


            Second, DOL is proposing a 45-day period for employers to file approved permanent labor certifications in support of a petition with the USCIS for immigration petition for the alien beneficiaries.


            Third, the proposed rule expressly prohibits the sale, barter, or purchase of labor certifications, as well as other related payment.


            Fourth, the proposed rule includes provisions highlighting existing law pertaining to submission of fraudulent or false information, clarifying current DOL procedures for responding to possible fraud, and adding procedures for debarment from the permanent labor certification program. 


            Under this proposed regulation, these provisions would apply to labor certification applications and approved certifications filed under both the PERM regulations effective March 28, 2005, and any prior regulations. 


            Even though this is just a notice of proposed rules, we believe the chance the rules are adopted is quite high.  In light of the proposed rules, Lin & Valdez L.L.P. urges all employers with approved labor certifications to file the consequent I-140 immigration classification petitions for the alien employees as soon as possible.  As for the ban on substitution of beneficiaries, we believe that it does not adequitely consider the needs of the business world and will concur with the American Immigration Lawyers’ Association (AILA) to utter our objection to it.   


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