from immigration-law.com
03/04/2006: Approaching Deadline of Comment Period for Labor Substitution Elimination Proposed Rule
* This controversial rule-making of the U.S. Department of Labor has a deadline for the agency to take in comments. It is April 4 which is a month away from today. We expect that various stakeholder entities and individuals are expected to send in the comments before the deadline. Currently, AILA is working on its comments focusing on the following five issues:
o Absolute prohibition against substituting aliens on labor certifications;
o Limitation on validity period of the labor certification to only 45-days;
o Interference with the attorney/client relationship in prohibiting the alien from paying attorneys fees and other expenses for the labor certification application;
o Imposition of new penalties and standards for penalizing suspected fraud;
o Prohibition against amending PERM applications.
* The comment is a political process that arouses both pro and con immigration forces to tip the policy decision of an agency toward their interests. Accordingly, anti-immigrant forces tend to send in their strongly worded but articulated view on the rule-making. In this case, they are expected to send in their comments in support of the proposed rule. Without doubt a number of immigration stakeholder groups will participate in sending in comments to the agency, but it is urged that public and private organizations and community entities also participate in the rule-making process and send in their comments before the deadline. Short list of comments will shorten the final rule making process and long list of comments will stretch out the final rule making process as the law mandates that the rule-making agency carefully reviews and reflects the views of the constituents pro and con in drawing up the final regulation.
03/09/2006: Serious Flaw of 45-day Validity of Labor Certification under Proposed Substitution Elimination Rule
* The DOL's proposed substitution elimination rule with the comment period ending on April 4, 2006 has a number of flaws which many stakeholder parties will address to the agency in writing before the deadline. Here, we want to address just one of these flaws related to the provision which will limit the validity of the certified labor certification application to 45 days from the date of certification. As the agency would admit it, the National Processing Centers and Backlog Processing Centers have failed to timely mail out the certified labor certification applications in a number of cases both in the PERM applications and the Backlog applications. There have been some reports by the legal counsels and employers that in the case of PERM applications, after they learned that the cases had been certified online, they failed to receive the certified applications even way over a month! There have been similar reports for the Backlog cases in that the employers and the counsels have received the certified applications a substantial number of days behind the date of certification. No matter how meticulously the agency processes the mailing of the certification, without doubt, there will be some cases of delay in mailing of the certified applications. This will be particularly serious in the PERM applications that require signature of the alien applicants on the original certified application before the employers can file I-140 petition. Sometimes, employers file the PERM applications for the alien beneficiaries who reside outside of the United States or who reside in the United States but travel at the time of receipt of the certified applications after delays in the agency's mailing. In a number of cases, depending on the extent of the agency's delays in the mailing, it would be impossible to timely obtain the signatures from the aliens residing or travelling abroad within 45days from " the date of certification."
* Obviously, this provision is a product of either oversight or failure to work out a rule after a well thought-out analysis and review. Firstly, the 45-day should not run until the certification is mailed out by the agency as proven by a post-mark on the envelope or until the certification is received by the legal counsel or the employer. Secondly, in some instances, the 45-day clock should not run or an extended period should be provided to make this policy work. For instance, for the aliens residing or travelling in foreign countries, depending on the itinerary of the aliens, delivery of the certified PERM applications on such a short notice may not work at all. Additionally, there would be situations where the alien is in an emergency situation such as surgery or in coma or other emergencies. The proposed regulation is unreasonably and unnecessarily rigid on this issue and fails to accomodate certain exceptional circumstances that need a special rule on the running of 45 days. The DOL is urged to change the start date of 45-day validity from certification date to either mailing date or receipt date, and more importantly, to provide exceptional circumstances and rules where a different rule should prevail in counting 45 days.
