Final Rule on Labor Certification Validity and Payment of Employer Attorney Fees

72 Fed. Reg. 27904 (May 17, 2007)

A Department of Labor final rule, published on May 17, 2007, with a July 16, 2007, effective date, makes the following changes, which will apply to permanent labor certification applications and approved certifications filed under both PERM and pre-PERM procedures:

• Establishes a 180-day validity period for approved labor certifications
  • All labor certifications approved on or after the July 16, 2007, effective date must be filed in support of a Form I-140 petition with DHS within 180 calendar days of the labor certification's approval date.
  • All labor certifications approved prior to the July 16, 2007, effective date must be filed in support of a Form I-140 petition with DHS within 180 calendar days after July 16, 2007.
• Prohibits substitution of alien beneficiaries on permanent labor certification applications and resulting certifications.
• Prohibits the sale, barter, or purchase of permanent labor certifications and applications.
• Requires employers to pay the costs of preparing, filing, and obtaining certification, and prohibits an employer from transferring those costs to the beneficiary. This includes a prohibition on the alien paying the employer's attorney fees. The rule does allow an alien to pay his or her own personal costs incurred in connection with a labor certification, including attorney fees for personal legal representation, but where the same attorney represents both the alien and the employer, the costs must be borne by the employer.
• Reinforces existing law regarding the submission of fraudulent or false information and clarifies current DOL procedures for responding to incidents of possible fraud.
• Establishes procedures for debarment from the permanent labor certification program.
• Clarifies DOL’s “no modifications” policy for applications filed under the PERM process.