I am in EB3 category and waiting for the approval for the last 3 years. I am just wondering whether I can use EB2 substitution labor of 2002?There is an article in Murthy about DOL regulation which i am not completly clear. I greatly appreciate your input into this topic.
http://www.murthy.com/news/n_comlab.html
05/01/2007: Final Sub Elimination Rule and Likely Impact on Pending Amendment to Substitute the Beneficiary with BEC
- Under the proposed substitution elimination rule, once the final rule is published, not only substitution of approved labor certification will be prohibited, but also amendment of pending labor certifications at the BEC to substitute the alien beneficiary will be prohibilted. The proposed rule also stated that "Substitution of alien beneficiaries will be prohibited as of the effective date of a final rule resulting from this NPRM and that prohibition will apply to all pending permanent labor certification applications and to approved certifications not yet filed with DHS, whether the application was filed under the prior or current regulation. This regulatory change would not affect substitutions approved prior to the final rule's effective date." With reference to the underlined statement, there is a question of the amendment which has been submitted prior to the release of the final rule. The unresolved question is when such amendment will be considered "substitution approved." In other words, would the employer need a written notice allowing the substitution or simply filing of the substitution request will be considered "substitution approved." Conservative approach and reading of the plain language of "substitution approved" may comfort with the latter interpretation. The BEC is thus advised to institute a procedure "immediately" to notify such approval of the substitution of beneficiary request via e-mail to avoid potential litigation in the future. Additionally, the employers in this situation may contact the BEC to seek some evidence in writing just for safeside. Otherwise, there may arise litigations because the current labor certification rule permits the amendment of pending labor certification application which has traditionally included a substitution of the alien beneficiary.
- There is another issue people should pay attention to. In order to close the backlog cases by the end of September 2007, the OFLC released a statement that the amendment of the pending TR application will be permitted only before the job order and recruitment process started for TR cases. It thus practically mean that policy-wise, BEC may not entertain the amendment to substitute the beneficiary in TR cases if they have already issued the recruitment instructions and placed the job order by the BEC. Accordingly, in these cases, people may not want to assume that simply because they requested the substitution of beneficiary with the BEC, they will get the labor certification approval for the substituting alien.