Publication

June 8, 2007Client Alert

New Regulations Regarding Labor Certification Filing Costs and Filing of I-140’s After Labor Certification Approval

The U.S. Department of Labor recently issued regulations that address two important issues related to the labor certification application process. The first step to obtain permanent residence for an employee usually involves filing a labor certification application with the U.S. Department of Labor. Since March of 2005, these labor certification applications have been referred to as PERM applications.

Filing Costs

The new regulations require that all costs incurred in preparing and filing a labor certification application be exclusively borne by the employer. Employers may not recover costs from alien employees by accepting payment of filing fees or attorney fees, accepting incentives to file the application, accepting reimbursement of costs, accepting free labor, or reducing or withholding the wages or benefits of the alien named on the application. If an attorney prepares or files any part of the labor certification application, the employer must cover the attorney’s fees involved. The Supplemental Information accompanying the regulation specifically notes that agreements for reimbursement of labor certification costs if the employee ends the employment relationship before a certain time will not be allowed under the new regulation.

In rare cases where a legitimate third-party business relationship pre-dates the labor certification process, the third-party entity may pay for all or a portion of the costs incurred, as appropriate. Third-party payments are allowed when two or more entities will benefit from the alien’s employment. For example, where a University and a Foundation make dual appointments of employees and the University sponsors the labor certification application for an employee, the Foundation can pay part or all of the attorney’s fees related to the labor certification application.

Evidence that an employer has sought or received from the alien employee any payment for fees incurred in the labor certification process may result in the denial or revocation of the application, or in debarment of the employer from the labor certification program.

Filing of I-140 after Approval of Labor Certification Application

The new regulations also limit the validity period of approved labor certification applications. Under the new regulations, the I-140 petition seeking permanent residence must be filed within 180 calendar days after the related labor certification is approved. For labor certifications approved on or after July 16, 2007, the effective date of the regulations, an I-140 must be filed within 180 calendar days of the approval. For labor certifications approved before July 16, 2007, an I-140 petition must be filed within 180 calendar days of July 16, 2007. If the I-140 is not filed on a timely basis, the labor certification is invalidated and a new labor certification must be filed by the employer.

If you have any questions regarding labor certification applications, please contact José A. Olivieri at 414.225.4967, jaolivieri@michaelbest.com, or Kelly M. Fortier at 414.277.3460, or kmfortier@michaelbest.com.

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