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Department of Labor Issues New PERM Rule

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Department of Labor Issues New PERM Rule

May 25, 2007

On May 16, 2007, the Department of Labor issued a Final Rule regarding PERM Labor Certifications, which affects employee substitutions, payment of Labor Certification fees and costs, the validity period of certified PERM applications, and more. The effective date of this rule is July 16, 2007.

We are evaluating all PERM cases within our office to determine how this rule impacts our strategy decisions and advice. After we have thoroughly reviewed this 97 page final rule, we will provide an in-depth analysis and strategic recommendations for all affected cases. Fortunately, we do not anticipate that the new provisions will have a significant impact on most of our clients, although some may be impacted more than others.

We are working closely with our national organization of immigration lawyers and other immigration colleagues to resolve the many concerns and open questions related to these changes. We also expect to receive continued guidance from the Department of Labor about this new rule. Preliminarily, however, the following highlights will soon be in effect for all PERM Labor Certification applications:

· Employee Substitution Prohibited. The new rule prohibits the substitution of employee beneficiaries on PERM Labor Certification applications, and certified PERMs.

· 180-Day Validity Period for PERMs. Employers must file an I-140 Immigrant Visa Petition on behalf of the employee beneficiary within 180 days of the certification, or the PERM Labor Certification will become invalid. There was no such validity period previously.

· No Amendments to Labor Certifications Permitted. The rule expressly prohibits any amendments to a Labor Certification after it has been filed. Only evidence and supporting documentation that existed at the time of filing the Labor Certification may be used in support of a Motion to Reconsider a denied certification.

· No Sale, Barter or Purchase of PERM Labor Certifications. Any payment to a petitioning employer for a Labor Certification is prohibited.

· Employers Must Pay PERM Costs. Employers must pay for the recruitment costs and all other associated costs of the Labor Certification, including its attorney fees, and may not seek reimbursement from the employee beneficiary for these costs. There are very limited exceptions to this provision. Although the effective date is July 16, 2007, there are many questions and uncertainties about the reach of this particular prohibition.

· Stronger Enforcement Against Fraud. New rules now exist to reinforce existing laws related to the submission of fraudulent or false information.

· Debarment Penalty. The new rule establishes a procedure for debarment of employers, attorneys and agents from the Labor Certification program in instances of fraud, noncompliance or willful misrepresentation.

If your foreign national employees inquire about the impact of this rule on their case, please reassure them that we are actively reviewing and strategizing on all implicated cases. Please feel free to forward their specific questions and concerns, which we will address during our strategic review process.

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