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Immigration News - May 7, 2007

May 07, 2007

By Immigration Practice Group

Labor Certification Substitution Regulation Appears Imminent

On April 27, the federal Office of Management and Budget (OMB) cleared the U.S. Department of Labor's (DOL's) draft final regulation that would, among other things, prohibit the substitution of beneficiaries on labor certification applications.  The likelihood is that the regulation will be published imminently in the Federal Register.

The DOL has not yet disclosed what will be included in the final regulation.  However, the proposed regulation contained provisions which will do more than eliminate the substitution of labor certification beneficiaries.  Other provisions will achieve the following: (1) bar the payment by the foreign national beneficiary of the attorney fees and other labor certification costs (including recruitment costs) that are regarded by the DOL as an employer expense, (2) require the filing of an I-140 immigrant petition within 45 days of the DOL's approval of the labor certification, and (3) enhance penalties for violations of the DOL labor certification regulations.  The DOL's stated objective in publishing a regulation is to eliminate fraud and abuse in the labor certification program.

Many unanswered questions exist at this time, including whether and when a final regulation will be published, the content of the final regulation, and the effective date of such a regulation (most likely this will be 30 or 60 days after publication).  In addition, the Department of Homeland Security (DHS) has not yet announced what action it will take in response to the DOL's regulation.  It is possible that DHS will not alter its own practices until it has published a companion rule.  In light of all this uncertainty, employers should file I-140s promptly for any approved labor certifications that are intended for use by substituted beneficiaries.  These petitions may or may not be approved, but filing as soon as possible offers the best chance for success.  And, of course, labor certifications presently pending with the DOL which employers intend for future use by substituted beneficiaries may or may not be adjudicated in a sufficiently timely manner to be used for this purpose, depending on the timing and wording of the final DOL regulation.
Because of the complexity and uncertainty surrounding this situation each case should be reviewed individually with legal counsel to determine the best strategy.

H-1B Advanced Degree Quota is Exhausted

The United States Citizenship and Immigration Services (USCIS) today announced that the H-1B advanced degree cap, for foreign nationals with a master’s degree or higher from a U.S. institution of higher education, has been reached for fiscal year 2008.  The USCIS announcement may be found at

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Petitions received on the “final receipt date” of April 30, 2007 will be subject to a random selection process or “lottery.”  Petitions received on or after May 1, 2007 will be rejected unless another exemption is applicable.