Labor Reusability Question

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Post AC-21 Labor Reusability/Substitution Question

Gurus,
I have a followup question on this.

Chat User : Thanks for the great service, Murthiji. Can an employer substitute the labor of a person who left the company after 180 days, whose I-140 has been approved and I-485 is pending, to another person?

Attorney Murthy : The employer is allowed to do that, but there is a risk for the new employee using the earlier-approved LC since the USCIS is only allowing one person to use the LC so that, if the original person obtains the I-485 approval, then the new person / employee will get nothing and would have wasted valuable time and money for no purpose. It is always safer to use a new LC that has never been used to avoid such a negative consequence. Before AC21, the employee would get nothing if s/he left before obtaining the green card. Now, both parties can try, but it is sort of like a race with the person reaching the finish line first winning and the other person getting nothing!

In case some one like me who is stuck in name check leaves the GC sponsoring employer and the employer tries to use the labor for someone else by filing 140/485, and that person is able to adjudicate before me, what are my options?

Will sending in AC-21 documentation pre-empt the employer from using the labor to someone else?
 
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This may be help you

Murthy Chat June 20 2005
Chat User : 140 has been approved. If I use AC21 now, is there any chance of canceling the approved I-140 by employer?

Attorney Murthy : The employer may cancel or revoke the I-140 to use for another employee. The risk is that if the USCIS approves your case first, for example, then the second person has nothing left to use. This is risky for both the employees involved and employers are now realizing that there is a risk in this process. Arguably, the original person who has an I-140 petition approval and the I-485 pending for over 180 days should be protected under AC21 and the USCIS seems to be taking this view in the MTRs and other RFE responses from our Office which are getting approved in such cases.
 
check this
http://www.immigration-law.com/

08/12/2005: OMB Approved DOL's Proposed Rule to Eliminate Substitution of LC and 45-Day Cap for Approved LC

On August 10, 2005, the OMB cleared the DOL's proposed rule entitled Labor Certification for the Permanent Employment of Aliens in the United States; Reducing the Incentives and Opportunities for Fraud and Abuse for publishing in the federal register. In this rule, the DOL is proposing changes to reduce the incentives and opportunities for fraud and abuse related to the permanent employment of aliens in the United States. Among other key changes, the DOL is proposing to (1) eliminate the current practice of allowing the substitution of alien beneficiaries on applications and approved labor certifications. DOL is proposing to further reduce the likelihood of the submission of fraudulent applications for the permanent employment of aliens in the United States by (2) proposing a 45-day deadline for employers to file approved permanent labor certifications in support of a petition with the Department of Homeland Security. The proposed rule expressly prohibits the sale, barter, or purchase of permanent labor certifications or applications, as well as related payments. DOL will also (3) propose enforcement mechanisms to protect program integrity, including debarment with appeal rights. These proposed amendments would apply to employers using both the Application for Alien Employment Certification (Form ETA 750) or the Application for Permanent Employment Certification (Form ETA 9089).
Considering the recent DOL policy change to prevent labor certification frauds, it is anticipated that this proposed rule will be published in the federal register very swiftly. Please stay tuned to this website for the development of this rule-making.
 
How soon can it come to effect?

HI,

Please check the following article in immigration-law.com that says that OMB has approved DOL's proposal to eliminate labor substitution on Aug 10th

http://www.immigration-law.com/

To make it a final rule, does they have to publish in federal registry for comments or can they directly make it a rule with immediate effect next week?

What is the minimum amount of time that they will take for bringign this rule into effect?

Please help me with the info you know.

Thanks In Advance
 
This is good news especially for those who want to change using AC21 and fear any employer reprisals. This will also put a stop to labor trading that is getting out of control these days.
 
What will happen to people who has already applied 140/485 using substiture labour?

I'm one person who has applied like that, will it effect my 485 processing.
 
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