I came across the following article on labor substitution in www.immigration-law.com and thought it might help somebody in this forum.
03/17/2005: Backlog Labor Certification Applications and Substitution of Employees
Reportedly there are over 300,000 backlog cases which are and will be processed by the Backlog Processing Centers in the next 24 months or 30 months. Assumedly, a substantial number of these cases were filed years ago and are still pending at the labor department. Passage of time sometimes has affected the survivability of the alien beneficiary. For that matter, there could have been changes in the employers. This raises the question of substitution of employer or employee for the pending permanent labor certification application.
When it comes to the question of substitution of the employers or the alien beneficiaries, people often focused on the substitutiton of employer or alien beneficiary for the "approved" labor certification. Once labor certification is approved, the USCIS permits substitution of alien beneficiary in the approved labor certification application at the stage of I-140 immigrant petition. This substitution has been very popular and widely utilized by the employers as well as the aliens. The substitution has a particular importance nowadays because of the EB-3 visa number backlog. Since the substituting alien benefits from the original priority date of the labor certification application, the substitution may be used as a means to bypass the EB-3 visa number problem.
People often do not however realize that there is also available another proceeding which results in a similar consequence as the substitution even before the labor certification application is approved. This proceeding is called "amendment" of the application. Traditionally, the labor department has accepted the request for amendment of the pending labor certification application to change the name of the employer or the alien beneficiary inasmuch as the location and the occupational classification remain unchanged. For instance, there may be some situations where the original alien beneficiary is no longer available for the pending labor labor certification application for a number of different causes. In such situation, employers from time to time left the pending applications intact and once the labor certification was approved, they used it for substitution of the alien beneficiary at the stage of I-140 petition. However, the recent DOL survey that it detected that some employers had abused the substitutions and filed applications on behalf of the non-existing alien beneficiaries for the sole purpose of the substitution for another aliens. Such report may make the employers uncomfortable to keep the pending labor certification application when the alien beneficiary is no longer available. The alternative would be to amend the pending labor certification application on behalf of another alien beneficiary and substitute the alien beneficiary for the pending labor certification application. The substitutiing alien beneficiary will retain the original priority date of the pending labor certification application. Such amendment should be available not only in response to the so-called 45-day letters but also entire period until the application is approved.
03/17/2005: Backlog Labor Certification Applications and Substitution of Employees
Reportedly there are over 300,000 backlog cases which are and will be processed by the Backlog Processing Centers in the next 24 months or 30 months. Assumedly, a substantial number of these cases were filed years ago and are still pending at the labor department. Passage of time sometimes has affected the survivability of the alien beneficiary. For that matter, there could have been changes in the employers. This raises the question of substitution of employer or employee for the pending permanent labor certification application.
When it comes to the question of substitution of the employers or the alien beneficiaries, people often focused on the substitutiton of employer or alien beneficiary for the "approved" labor certification. Once labor certification is approved, the USCIS permits substitution of alien beneficiary in the approved labor certification application at the stage of I-140 immigrant petition. This substitution has been very popular and widely utilized by the employers as well as the aliens. The substitution has a particular importance nowadays because of the EB-3 visa number backlog. Since the substituting alien benefits from the original priority date of the labor certification application, the substitution may be used as a means to bypass the EB-3 visa number problem.
People often do not however realize that there is also available another proceeding which results in a similar consequence as the substitution even before the labor certification application is approved. This proceeding is called "amendment" of the application. Traditionally, the labor department has accepted the request for amendment of the pending labor certification application to change the name of the employer or the alien beneficiary inasmuch as the location and the occupational classification remain unchanged. For instance, there may be some situations where the original alien beneficiary is no longer available for the pending labor labor certification application for a number of different causes. In such situation, employers from time to time left the pending applications intact and once the labor certification was approved, they used it for substitution of the alien beneficiary at the stage of I-140 petition. However, the recent DOL survey that it detected that some employers had abused the substitutions and filed applications on behalf of the non-existing alien beneficiaries for the sole purpose of the substitution for another aliens. Such report may make the employers uncomfortable to keep the pending labor certification application when the alien beneficiary is no longer available. The alternative would be to amend the pending labor certification application on behalf of another alien beneficiary and substitute the alien beneficiary for the pending labor certification application. The substitutiing alien beneficiary will retain the original priority date of the pending labor certification application. Such amendment should be available not only in response to the so-called 45-day letters but also entire period until the application is approved.