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Joel Stewart on PERM Labor Certification

Substitution of Aliens

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In case you are unaware, the substitution rule should be coming to an end. The rule permits an employer to substitute a different or new alien in place of the original alien. Substitution takes place when the I-140 Petition is filed. The Employer appends information to the I-140 to provide information about the new alien who was qualified at the time the labor certification was first submitted to DOL. As an added bonus, the new alien benefits from the priority date of the original alien. Aliens who are not protected by Sec. 245-i cannot gain protection by being substituted, however, they can gain the benefit of the earlier priority date of an approved labor certification. Experienced practitioners are familiar with the substitution rule, however, there are many nuances yet to be explored. By the way, if you can't find the rule, stop looking in the DOL regulations. The substitution rule is in the INS regs, not DOL. In addition to substitution of aliens, there are related issues like substitution of petitioner. I'm going to return to these issues soon. Meanwhile, I welcome your comments on the new, proposed rule that will elminate substitution of aliens, and urge you to file your substitutions now. Remember, that a bare-bones I-140 meets the definition of a " properly filed " petition, if it is signed and accompanied by a filing fee. Copious and hard to get documentation to prove the employer's ability to pay and the alien's qualifications can be submitted after the fact.

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  1. Anonymous's Avatar
    So what will happen to old, unused, certified labor certs if this new rule goes into effect as proposed? Are there any uses for such a certification later?
  2. guray elik's Avatar

    My question will be the following.
    Our company applied for 2 labor certificates back in April 2001. Both are just approved. One person is still around and he will continue the process for green card.

    Meantime, the other is not here and we want to find out if it is feasible to sustitute this person with another person who came to US in 2002 and is legal afterwards. The new person was never illegal. Do you think there is a chance or did the new person have to be present in US in 2001 when the case was originally filed or have to be in US based on rule 245(i)?

    Thank you
    Guray Elik
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