8/22/2007

The DOL's labor certification substitution elimination Final Rule, which took effect on July 16, 2007, include the following key points:

(1) prohibits an employer from receiving payment of any kind as an incentive or inducement to file, or in reimbursement of the costs of preparation or filing of, an application for labor certification, including covering the costs of the employer’s attorneys’ fees, except as specifically provided for certain third-party payments;

(2) prohibits an employer filing an application for labor certification from reducing the wages, salary or benefits of an alien named on the application for any expense related to the preparation and filing of the application. This prohibition includes the payment by the alien of costs as well as the employer’s attorneys’ fees;

(3) prohibits employers engaged in the labor certification process from withholding from an alien’s wages, either in increments or in lump sum, any payment in reimbursement to the employer for costs associated with that process. 

Prohibited payments include, but are not limited to: Employer fees for hiring the alien beneficiary; receipt of ‘‘kickbacks’’ of part of the alien beneficiary’s pay, whether through a payroll deduction or otherwise; reducing the alien beneficiary’s pay for purposes of reimbursement or prepayment; goods and services or other wage or employment concessions; kickbacks, bribes or tributes; or receipt of payment from aliens, attorneys, or agents for allowing a permanent labor certification application to be filed on behalf of the employer.

Consequences of violation of this rule can include civil and criminal penalty and debarment from filing any permanent labor certification applications for up to three years. Accordingly, the employers sponsoring permanent labor certification application post July 16, 2007 should familiarize themselves with the LC Substitution Elimination Final Rule not to face any legal problems.