By Henry Long,2014-05-19 13:44
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TO: All Employers Sponsoring Immigrant Workers

RE: Compliance with U.S. Department of Labor Regulations

DATE: July 16, 2007

    This memorandum discusses the employer’s obligations under the U.S. Department of Labor regulations that became effective on July 16, 2007.

    Most employers who wish to permanently employ an alien must first file with the U.S. Department of Labor (USDOL), and obtain approval of, ETA Form 9089, entitled Application for Permanent Employment Certification, hereafter referred to as “PERM

    Application”. Once approved by the USDOL, the PERM Application is filed with Form I-

    140, entitled Petition for Immigrant Worker, hereafter referred to as “I-140 Petition”, with

    the U.S. Citizenship and Immigration Services (USCIS). The USCIS must approve the I-140 Petition, and an immigrant visa must be available, in order for an alien to be eligible to obtain Permanent Resident Status (“Green Card”) in the United States.

    In order to limit the acquisition and use of permanent labor certifications, as well as enhance program integrity and reduce the incentives and opportunities for fraud and abuse related to the permanent employment of aliens in the United States, the U.S. Department of Labor, Employment and Training Administration, has amended its regulations to: (1) prohibit the substitution of aliens on labor certification applications; (2) limit the validity period for labor certifications; and (3) mandate the payment of costs related to the labor certification be borne exclusively by the sponsoring employer, as follows:


    The new DOL rule prohibits the substitution of alien beneficiaries on labor certifications after July 16, 2007. This prohibition applies to all pending permanent labor certification applications and to all approved permanent labor certifications with the exception of substitution requests currently pending with or already approved by USCIS.


    The new DOL rule prohibits any modifications to permanent labor certification applications once they are filed with the USDOL.


    All permanent labor certifications approved on or after July 16, 2007 will expire 180 calendar days after certification unless filed prior to expiration in support of an I-140 Petition with USCIS. Likewise, all certifications approved prior to July 16, 2007 will expire 180 days after July 16, 2007 (which is January 12, 2008) unless filed in support of an I-140 Petition with USCIS prior to the expiration date.


    The new rule prohibits the sale, barter, and purchase of applications and approved labor certifications, as well as certain payments to employers in compensation or reimbursement for the employer’s costs incurred to obtain labor certification. This ban applies to all such transactions on or after July 16, 2007.

    In regard to the employer’s obligation for the payment of costs, the USDOL regulations require that the employer pay all costs related to the preparation, filing and obtaining of labor certification. Specifically, such costs include attorney fees, advertisement costs, and any other expenses. Moreover, the employer is prohibited from transferring or charging back any costs incurred to the alien whether it be in the form of kickbacks, wage withholdings, financial incentives, and lump sum reimbursements, as well as non-monetary transactions, such as free labor.

    The regulations exempt certain third-party payments from this prohibition, allowing certain payments be made in connection with labor certifications, where there is a legitimate, pre-existing business relationship between the employer and a third party, and the work to be performed will benefit that third party.


    The new rule allows the USDOL to debar an employer, attorney, and/or agent from the permanent labor certification program for up to three years, when it determines such employer, attorney, and/or agent has facilitated or participated in one or more of the following actions:

    ; Sale, barter or purchase of an application for labor certification or approved labor


    ; Prohibited payment for an activity related to obtaining permanent labor


    ; Willful provision or assistance in the provision of false or inaccurate information

    for an application for labor certification;

    ; Pattern or practice of failure to comply with the terms of Form ETA 9089,

    Application for Permanent Employment Certification, or Form ETA 750,

    Application for Alien Employment Certification;

    ; Pattern or practice of failure to comply with the Permanent Labor Certification

    audit process;

    ; Pattern or practice of failure to comply with the Permanent Labor Certification

    supervised recruitment process; or

    ; Fraud or willful misrepresentation involving a Permanent Labor Certification, as

    determined by a court, the Department of Homeland Security, or the Department

    of State.

    This memorandum is for informational purposes only, and should not be considered legal advice. Should you have any questions or concerns in regard to your obligations as an employer, please contact our office for assistance.


Meghan Kennedy Riordan, Senior Partner

    Deniz M. Baser, Senior Associate Attorney

    Lisa Tehlirian, Associate Attorney

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