3/1/2006

SUMMARY: The Employment and Training Administration (ETA) of the Department of Labor (Department or DOL) is publishing a Notice of Proposed Rulemaking (NPRM or proposed rule) with request for comments to enhance program integrity and reduce the incentives and opportunities for fraud and abuse related to the permanent employment of aliens in the United States. First, DOL is proposing to eliminate the current practice of allowing the substitution of alien beneficiaries on permanent labor certification applications and resulting certifications. 

Second, DOL is proposing a 45-day period for employers to file approved permanent labor certifications in support of a petition with the Department of Homeland Security, United States Citizenship and Immigration Services (DHS). Third, the proposed rule expressly prohibits the sale, barter, or purchase of permanent labor applications and certifications, as well as other related payments.

The proposed rule includes provisions highlighting existing law pertaining to submission of fraudulent or false information, clarifying current DOL procedures for responding to possible fraud, and adding procedures for debarment from the permanent labor certification program. Under this proposed regulation, these provisions to enhance program integrity and reduce fraud and abuse would apply to permanent labor certification applications and approved certifications filed under both the regulation effective March 28, 2005, and any prior regulation implementing the permanent labor certification program. 

This proposed rule also proposes clarifying modifications of applications filed after March 28, 2005, under the new streamlined permanent labor certification process. The Department solicits comments on each provision contained in this NPRM.

The proposed regulation provides that this regulatory change would not affect substitutions approved prior to the final rule's effective date. Accordingly, the following substitutions which have been approved prior to the final rule's effective date may or may not be affected:

Cases which are pending at the Backlog Elimination Centers for which the employer had requested and either SWA or Regional Certifying Offer allowed to amend ETA 750 and approved such amendment before March 28, 2005. Clearly will not be affected;

Cases which are pending at the Backlog Elimination Centers for which the employer had requested or will request amendment of ETA 750 substituting the alien's name, and the BEC would have approved such amendment before the final rule's effective date. BEC's returning of ETA 750 to the employer to amend and return to the BEC may or may not comfort with the requirement.