8/21/2007

The DOL's commonly called "Labor Certification Substitution Elimination" final rule which took effect recently covers three broad subjects: 

(1) Elimination of labor certification substitution beneficiary after July 16, 2007; 

(2) Limitation of validity of approved labor certification for 180 days after the date of certification; 

(3) Prohibition of sale, bargain, etc of labor certification, employer obligation of the cost of labor certification, debarment of labor certification for violation, and sanctions for violation of violations by the representatives.

What is the scope of validity of a permanent labor certification for which a substitution request has been made? - As revised, §656.30(c)(2) states that a permanent labor certification is valid only for the particular job opportunity, the alien named on the original application (unless a substitution was approved prior to July 16, 2007), and the area of intended employment stated on the application (either Form ETA 750 or Form ETA 9089). As the Department made clear in the Supplementary Information that accompanied the Final Rule, ‘approved’ for purposes of the substitution request means approved by DOL at the DOL stage in processing such a request. Pursuant to §656.11(a), the Department will consider a request for substitution made prior to July 16, 2007, even if it does not make a determination or complete action on that request until after the Final Rule’s effective date.

How does the Department define “sale, barter, or purchase” of a labor certification? - No application for labor certification or approved labor certification may be sold, bartered, or purchased as of July 16, 2007. A “sale” means an agreement between a seller and a buyer to transfer ownership of a labor certification in consideration of monetary payment or promise of monetary payment. “Barter” means the transfer of ownership of a labor certification from one person to another by voluntary act or agreement in exchange for a commodity, service, property, or other valuable consideration. “Purchase” means the voluntary agreement to transfer ownership of a labor certification from one person to another based on valuable consideration. The Final Rule adds these definitions to §656.3.

DOL has updated the online wage library reflecting current data. The new wage data is effective as of 07/16/2007. Accordingly, those who file the H1B LCA (Labor Condition Application) based on the wage determination using SOC/OES wage data on Online Library, must use this new wage figure. If internal notices were posted and the prevailing wage failed to meet this new prevailing wage, they are likely to violate the labor condition application using the wrong prevailing wage and outdated and invalid wage data.