Immigration Alert: DOL Rule Prohibits Substitution/USCIS Temporarily Stops Premium Processing for I-140’s

On May 17, 2007, the U.S. Department of Labor ("DOL") issued its final rule prohibiting the substitution of foreign nationals in labor certifications as of July 16, 2007, the effective date of the rule. Also on that day, the U.S. Citizenship and Immigration Services ("USCIS") announced that it would no longer accept premium processing requests for I-140's requesting substitution after Friday, May 18, 2007. In this special alert, we shall briefly review each of these important developments.

1. DOL Final Rule Eliminates Substitution:

The final DOL rule on substitution implements the following five basic changes in the current labor certification practice. First, it eliminates the employer's ability to substitute another foreign national in an approved or pending labor certification. This takes effect on July 16, 2007 but does not apply to substitution requests made or approved prior to that date. Second, it imposes a validity period of 180 days on an approved labor certification and thus requires the I-140 petition to be filed within that time period. Third, it mandates that the sponsoring employer pay all legal fees, recruiting costs and other expenses associated with the labor certification process. Fourth, it bans the sale, barter, or purchase of approved labor certifications. Finally, it institutes a debarment procedure for employers who fraudulently violate the labor certification rules.

All of these changes will take effect on July 16, 2007. It thus is important that all employers review their rosters of pending and approved labor certifications to immediately determine whether substitution prior to July 16, 2007 is possible and what other changes these new rules will have on the employer's policies for sponsoring foreign nationals.

2. USCIS Stops Premium Processing for I-140's:

On May 17, 2007, the USCIS announced that it was temporarily halting premium processing service for I-140 petitions requesting labor certification substitution because it felt it did not have the resources to adjudicate the expected heavy flow of these applications prior to July 16, 2007.