In yesterday’s Federal Register, the Department of Labor published a final rule implementing a package of changes to the labor certification process.
DOL believes these changes are necessary to reduce the incentive for employers to file applications for labor certification unless there is a bona fide job opportunity available to U.S. workers.
Requirements that Employer Pay All Costs of the Labor Certification Process
This new rule prohibits an employer from seeking or receiving payment “of any kind for any activity relating to obtaining permanent labor certification, including payment of the employer’s attorney’s fees.” In addition, the rule specifies that if the same attorney is representing both the employee and the employer in the labor certification process, any costs relating to assistance to the employee must also be borne by the employer. The commentary published with the rule makes it clear that the prohibition extends to common practice of requiring an employee to sign a payback agreement (in which the employee agrees to reimburse the employer if he or she resigns during the process or within a certain time after obtaining permanent residence). The payment requirement only extends to the labor certification process, and not to the other steps of the “green card” process.
We will be offering a package of labor certification preparation services to our clients who have not previously assumed these costs in order to help them manage the requirements of this new rule.
Other Changes in the New Rule
Under current law and practice, labor certifications, once issued, are valid indefinitely, and if not needed for the original beneficiary, can be re-used for another qualified worker. The new rules eliminate substitution of beneficiaries (allowing an employer to use an approved labor certification on behalf of another employee) and require any immigrant visa petition on the basis of a labor certification must be filed within 180 days of the approval of the labor certification. The new rule also provides that labor certifications are not to be articles of commerce and may not be bought or sold for money or anything else of value.
The new rule also provides a new sanction on employers, their attorneys and agents if the DOL finds a willful material misrepresentation in the process or a violation of the requirements relating to payment of attorney fees and other costs of the labor certification process. The rule includes the authority to debar employers, their attorneys and agents from filing labor certifications for up to three years if they are found to have engaged in misrepresentations, prohibited payments, or a pattern or practice of failure to comply with either the terms of employment offered in labor certification, the audit process, or the supervised recruitment process.
Employer Actions Needed
In light of the Department of Labor’s rule, employers will need to review their immigration policies, in particular their policies on initiation and payment of legal fees for the labor certification process, and determine how they are going to comply with the Department of Labor’s new requirements. Employers may also wish to consider challenging the Department of Labor’s requirement in court, as some employers are considering doing.
A more detailed analysis of the provisions of the rule is available below in our Client Update.