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Joel Stewart on PERM Labor Certification

More about Substitution of Aliens

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A commentator wrote: "So what will happen to old, unused, certified labor certs if this new rule goes into effect as proposed?"



Joel Stewart's Response: The pre-PERM DOL regulations state that labor certifications are valid indefinitely. The new PERM regulations are silent on this point, but in the absence of any limitation, we must assume that PERM certifications are valid indefinitely as well. DOL seeks to rewrite the regulations to limit substitution and to provide for a limited period of validity. Consequently, unused labor certifications may go the way of pre-revolutionary Rubles. The regulations have not been published yet, but the fundamental issue in a labor certification determination is that the Secretary of Labor has made a finding that the employment of an alien in a particular job and in a particular place would not be harmful to US workers. The finding may be invalidated in case of fraud or misrepresentation under PERM and even for other reasons under PERM. DOL efforts to annul labor certifications might be seen as ultra vires, or one might make the argument that the new regulation should not be applied retroactively. The regulations have not yet been published, but we will look forward to input from our colleagues on these questions.

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  1. Eric Levine's Avatar
    Hi,

    Thank you for creating this blog. I would like to find out whether an employer (not employee) can be substituted after the DOL has issued a labor certification, but before an I-140 petition has been filed. The new employer is not a successor-in-interest. The two employers are not connected in any way. The job opportunity through the new employer is virtually identical to the job opportunity with the original employer (i.e., the same wage, geographical area, and job duties ).
  2. Jagan's Avatar
    No - You cannot substitute unrelated employer on the labor certification. Labor is always employer specific. Only exception is successor-in-interest situation. See BALCA decision in Matter of Horizon Science Academy, 2006-INA-00046 (3/8/07).
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