retrogression20 said:
Finally one good news for waiters in long queue for GC
Immigration-law.com
02/05/2006: DOL Resummitted and Obtained OMB Clearance of Proposed Labor Substitution Elimination Regulation on 02/02/2006
This DOL and DHS proposed rule was cleared by the OMB last fall, but for unknown reasons, it has been pushed off. However, on February 2, 2006, Thursday, ETA/DOL resummitted the proposed rule and on the same day, the OMB cleared again this regulation. It is unknown at this time exactly when the DOL will publish this critical regulation but considering the fact that it reinstated the rule-making process as late as three days back, something must be cooking this time. Please stay tuned.
For those of you needing more information on this, posting from Murthy.com
Proposal to End LC Substitution and Require Prompt I-140 Filing
Posted Aug 26, 2005
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The U.S. Department of Labor (DOL) introduced a regulation in mid-August 2005 proposing an end to the procedure known as labor certification (LC) substitution. The proposed regulation has cleared the Office of Management and Budget (OMB) and will be returned from OMB to the DOL. From the DOL, it will be sent for publication in the Federal Register as a proposed rule. There will be an opportunity for public comment on the proposed rule. It is likely to receive a great deal of response, including comments from us at The Law Office of Sheela Murthy, since there are many troubling issues with the proposal. Areas of concern are outlined here for our MurthyDotCom and MurthyBulletin readers.
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Overview of the DOL Proposed Rule
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In addition to the elimination of LC substitution, the regulation proposes a deadline of 45 days for an employer to file the labor certification in support of an I-140 petition. Since this is a DOL regulation, it can only pertain to the labor certification and not specifically to the I-140. The wording of the abstract on this regulation, however, appears to state that the labor certification must be filed with an I-140 within 45 days in order to be valid. Thus, it seems that labor certifications, which are now valid indefinitely, would have some type of expiration date under the proposed regulation. We adamantly oppose this 45-day requirement as unjust, impractical, and unrealistic for reasons we will explain below.
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What is LC Substitution?
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The substitution process permits an employer to substitute the beneficiary of a labor certification. A typical scenario is when a company files a labor certification for employee A and Employee A leaves the company. Employee B is substituted for employee A in the case. Employee B must have the required education and experience set out in the labor certification. Additionally, employee B must have possessed the required education and experience as of the date the labor certification was filed.
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Background and Reasons LC Substitutions Should Continue
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The problem with substitution is that, as with any procedure, there are those who try to take advantage and misuse the process. The DOL is trying to reduce the opportunities for fraud. In keeping with this, the proposed regulation expressly prohibits the sale, barter, or purchase of permanent labor certifications, as well as related payments. They will propose enforcement mechanisms for these prohibitions.
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We understand that there are abuses. We agree that labor certifications should not be sold. We concur that the substantial money that can be made in the sale of labor certifications tends to attract the unscrupulous and fraudulent. The good should not be discarded with the bad, however. There are legitimate labor substitution cases. An employer that invests time, effort, and finances into obtaining a labor certification approval for an employee should be able to use that certification for a new employee if the first employee quits or, otherwise, if the employment relationship has been terminated. If the case could have been filed for Employee B just as well as for Employee A, there is really no reason not to allow Employee B to substitute for Employee A. Better mechanisms could be devised to determine whether there has been a sale, or if the company is filing labor certifications strictly for the purpose of using them for substitution cases at a later point. There are many methods by which this could be accomplished, including requiring proof of the existence of the initial beneficiary and tracking the volume of substitution cases filed by any particular sponsoring employer.
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We note that the need for the substitution process is tied to the many years of delay within the DOL system. Employers were desperate to bring in highly skilled candidates and offering to help with a previously-approved LC was a win-win solution for all concerned. Now, with faster PERM processing, the need for substitution will likely reduce. Even with PERM, however, the process remains expensive and time consuming for most employers and employees. Eliminating the substitution process simply places another burden on U.S. employers and does not serve the purpose of protecting U.S. workers.
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Rule for Pending LC Substitution Cases
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The information that is available regarding this regulation does not address substitution cases filed prior to any change in regulation. This likely means that those who have already filed LC substitution cases before the publication of this regulation will be allowed to continue to take advantage of it.
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Introduction of the 45-Day Rule to File I-140 Petitions
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The proposed regulation contains a provision requiring that the approved labor certification be filed in support of an I-140 petition with the USCIS within 45 days! This, as noted above, is an enormous departure from the long-standing policy that labor certifications are valid indefinitely. This change also is, in the wording of the DOL, designed to reduce the likelihood of the submission of fraudulent applications. This type of time limit is simply not workable in the real world. We would urge the DOL to reconsider this short deadline and design a system that will eliminate fraud without penalizing legitimate applicants who may have waited for DOL action for years.
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Why are 45 Days Grossly Insufficient to File the I-140 Petition?
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We believe that the U.S. Department of Labor's proposal to allow only 45 days to file the I-140 immigrant petition fails to consider business realities and the government's own time taken to process cases. Below is an outline of some valid arguments as to why we believe the Department of Labor needs to reconsider its position.
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First, the time required to compile the necessary information is often more than 45 days. The filing of an I-140 petition requires the interaction of the employer / sponsor, the attorney, and the beneficiary. The employer must supply information regarding the company and its finances. The beneficiary must supply proof of his/her qualifications. The attorney must explain the law and the procedures, then compile the evidence submitted to prepare the case that the employer must understand, review, approve, and sign off on before filing the I-140 petition with the USCIS. While some of the documentation and information may be obtained in advance, financial and time considerations often make it impractical for all concerned.
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Second, the financial considerations involved will require advance planning if there is a 45-day limit. Given that labor certification processing times at the Backlog Processing Centers (BPCs) are uncertain and untraceable, much of the work required for the I-140 petition process generally awaits the receipt of the labor certification approval. Most employers are not willing to incur costs for its preparation in advance since an employee may decide to quit or leave the country at any time. So the time and costs involved in hiring outside, competent counsel often become prohibitive for the parties.
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Third, the combined effort of the individuals involved with the I-140 can be slowed due to normal human events such as vacation, illness, business travel, and financial concerns related to the legal and filing fees that may be due.
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Fourth, if documents are needed from abroad, the entire timeframe will likely extend even further.
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Fifth, there can be legitimate delays in obtaining financial documents from the employer for the most recent tax period, even if the taxes are filed within the permitted timeframes.
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Sixth, retrogression and concurrent filing issues affect the decision regarding the timing of the I-140 filing. If the case is eligible for concurrent filing, the beneficiary is likely to elect to take this route. The preparation of the I-485 for the beneficiary and his/her family may, however, require more than 45 days. There may be waiting times simply to get an appointment with the physician for the medical exam, delays in obtaining proper birth and marriage documents from abroad, or situations in which a person who is abroad needs to return to file the I-485. There are innumerable variations on this theme.
In response, the DOL might say to just file the I-140 if the I-485 cannot be filed within the 45 days. There is a problem if this is the approach. Once the I-140 is filed, the I-485 filing must wait until the I-140 receipt notice is issued. With retrogression, it may not be wise to file the I-140 and hope that the receipt notice arrives before the visa numbers retrogress. Forcing a beneficiary to make this choice, and potentially delay the filing of the I-485 for a substantial number of years, is simply unfair, especially considering that the DOL historically has taken several years to approve labor certifications, though nowadays they are starting to approve some PERM cases faster.
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Even suggesting such a low estimate of 45 days to file the I-140 petition seems incongruous considering business realities as outlined above and considering that, in the government processing context, the USCIS has not been able to meet its target goal of adjudicating simple petitions and applications within six months!
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Possible Solutions to Help All Parties
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If the DOL has found that delays in filing the I-140 petition are tied to fraud, there are a number of alternatives that would be far better than setting a 45-day limit. While we would prefer no limit, the most obvious solution would be to set a substantially longer limit, of at least six months or a year, with perhaps a procedure for allowing filings to exceed the deadline if there is reasonable justification for additional time. We do not see a direct connection between fraud and a delay in filing. The delay can be attributable to a number of genuine circumstances as outlined above. If there is fraud, then procedures can be put into place to detect and prevent it. If money is needed for investigations, then efforts to obtain proper funding should be a priority, rather than creating arbitrary, blunt rules that penalize the many legitimate cases with the few that are fraudulent.
