Questions of Substitutions Not Affected by the Forthcoming Substitution Elimination
The preamble of the proposed regulation provides that this regulatory change would not affect substitutions approved prior to the final rule's effective date. Accordingly, the following substitutions which have been approved prior to the final rule's effective date may or may not be affected:
Cases which are pending at the Backlog Elimination Centers for which the employer had requested and either SWA or Regional Certifying Offer allowed to amend ETA 750 and approved such amendment before March 28, 2005. Clearly will not be affected;
Cases which are pending at the Backlog Elimination Centers for which the employer had requested or will request amendment of ETA 750 substituting the alien's name, and the BEC would have approved such amendment before the final rule's effective date. BEC's returning of ETA 750 to the employer to amend and return to the BEC may or may not comfort with the requirement. The DOL may argue that BEC may have to "approve" the "amended" ETA 750 to meet the requirement of "substitution approved." However, one may argue that the act of returning ETA 750 to the employer to amend the alien name constitutes an approval of substitution. Additionally, BEC may also have to rule on the situation involving appeal of denial of the amendment before the BALCA.
When the employer has already obtained certification of the labor certification application, there may be following groups of people who intend to substitute and whose future needs the agency's further action on this regulation because of the ambiguity in the definition of "substitution approved":
(1) Employer filed I-140 petition for the substituting beneficiary but the I-140 has yet to be approved on the final rule's effective date. Simple Receipt Notice of I-140 may or may not comfort with the requirement of "substitution approved." However, again this should remain an issue which the DOL and the USCIS will have to resolve.
(2) Employer filed I-140 petition for the substituting beneficiary, which has been approved prior to the final rule's effective date. This would be a classical case of "substitution approved."
(3) Employer filed I-140 petition for the original beneficiary which has been either approved or pending. As part of the substitution process for such situation, employer withdraws the I-140 petition and at the time files a new I-140 petition for the substituting beneficiary. If no decision has been made on the approval of withdrawal and the new I-140 petition, the answer to the question turns to foregoing question (1). If the USCIS issues revocation letter, but the new I-140 is still pending, it may be considered another classical case of "substitution approved," similar to the foregoing question (2).
(4) Employer filed I-140 petition for the substituting beneficiary prior to the final rule's effective date, but USCIS denied I-140 on the issue of alien's qualification to meet the labor certification qualification requirement and the appeal of the decision is pending before AAO prior to the final rule's effective date. There may arise two conflicting arguments: One argument would be that the USCIS has approved the employer for the substitution but denied I-140 petition based on the merit of I-140 petition. Opposing argument would be that the USCIS failed to approve the substitution before reaching the merit. Obviously, the first argument sounds more persuasive and convincing, but we will have to wait and see.
(5) Employer filed I-140 petition for the substituting beneficiary, which has been denied on the issue of the employer financial ability to pay the proffered salary. I-140 was filed prior to, but denial was made post to, the final rule's effective date. Clearly, the denial was handed down the employer's qualification issue and not on the substitution nor the substituting alien's qualification issues. Arguably, the act of USCIS reaching merits of the I-140 implies that the USCIS approved the substitution, because unless they approved the substitution, there could not have adjudication of the I-140 on the merits. However, we will still have to wait and see what DOL and USCIS would say on the situation.
It is anticipated that the ambiguity of the language "substitution approved" prior to the final rule's effective date may generate a host of litigation in the future unless the DOL would revise or clarify or define the language clearly in the final regulation. Please stay tuned.
