AMENDMENTS TO
LABOR CERTIFICATES
A Labor Certificate (LC), once approved by
the Department of Labor (DOL) through the issuance of a final determination,
cannot be amended except to correct errors made by the certifying officer (such
as a spelling error in the alien or employer’s name). However, if an amendment
had been approved prior to the final determination but the certifying officer
failed to make such amendment to the certified forms, then any such substantive
amendment can be made.
It is the role of the Immigration and
Naturalization Service (INS) to determine whether any changes in the facts
surrounding the certification affect its validity. Technically, the INS can
only invalidate an LC when there has been fraud or misrepresentation during the
LC procedure. However when it finds that material changes have occurred, the
INS does not actually invalidate the LC but rather denies the
Employment-based(EB) preference petition. There are four issues that may arise
and so require the INS to examine the continuing validity of an approved LC.
1.
Substitution of Aliens
The U.S. Department of Labor (DOL)
issued interim procedures for substitution of alien beneficiaries in a
Memorandum dated May 4th 1995. These interim procedures were put
into place because the DOL’s earlier elimination of its substitution
procedures, which became effective in November 1992, were challenged in a
Federal Circuit Court (Kooritzky v. Reich) and the original rules were ordered
restored by the District Court. The court of appeal held that the DOL had
violated the Administrative Procedure Act rulemaking since the interim final
rules had not been open to public comment and nor had adequate notice of the
rule change been provided. Hence the DOL has re-instituted procedures through
which an employer may substitute one alien for another after a Labor
Certification (LC) has been approved.
The main advantage of substitution is that the original priority date can be assigned to the substituted alien. If the employer is not permitted to substitute a new alien on an approved LC then it must file a new LC for the new alien and get a new and much later priority date.
At present, under DOL procedures,
the employer can substitute one alien beneficiary for another on an approved LC
until an adjustment of status application has been
approved for the original alien or until the alien enters the U.S. on an
immigrant visa. There is no limit to the number of substitutions that an
employer can make prior to either of these events occurring. But the
substituted alien, in each case, must meet all the job requirements as per the
originally filed LC.
Procedure in brief:
When the original LC is still to
be approval by the DOL:
To document the new alien’s
qualifications for the job, the employer must submit its substitution request,
the new Form ETA 750 Parts A and B - on behalf of the new and to be substituted
alien and the documentation of the original certification. The employer must
submit documentation that the substituted alien meets the education, training
or experience requirements set forth in the original Part A of Form ETA
750. The employer cannot require less
of the substituted alien than it did of any of the U.S. workers who may have
applied for the job at the time if the initial LC filing. Part B of Form ETA
750, must be signed by the substituted alien. The following guidelines may be
noted when submitting such substitution requests:
a) Merely
writing the new alien’s name on copies of the originally submitted forms is not
permitted.
b) All
documentation of the original approved LC must be submitted.
c) If the original
LC is with the employer and has not yet been filed with the INS in support
of an Employment based preference petition then the original LC must be
resubmitted.
d) If the original
LC has been lost within 5 years of it’s final determination, a duplicate
one must first be obtained under the DOL rules, before submitting a
substitution request.
Upon receipt of a fully completed substitution request, the certifying officer is not expected to refer to the original file unless there is reason to believe that the original LC has been altered in some way.
If the certifying officer approves
the substitution request he will enter the date of filing of the original LC
on the new Form ETA 750, certify the new forms and return them to the employer
with the Final Determination. This will indicate that the original priority
date has been retained, when filing the new LC in support of an Employment
based petition, with the INS.
If the certifying officer wishes
to deny the substitution request then he must first issue a Notice
of Findings with reasons for the intended denial. The employer has the same
rights to respond to this Notice of Finding as with an original LC application,
except that if the Notice is based on an employer’s failure to document the
original LC, there will be no extension of time given to obtain the required
documentation.
For substitution requests, an adverse finding by the certifying officer in his Final Determination gives the employer the same appeal rights as in the case of an original LC application. A request for administrative-judicial review must be filed with the certifying officer who in turn will forward it to Board of Alien Labor Certification Appeals (BALCA).
If the LC has already been approved, the DOL has
delegated responsibility for substituting LC beneficiaries to the INS.
a) If the original
LC is with the INS awaiting an approval to an employment based preference
petition on behalf of the original employee, the employer must request the INS
to withdraw or revoke it. This letter, withdrawing the first I-140 as well as a
returned certified copy of the original LC, (the INS will not return the
original), must be filed along with a new I-140, ETA 750, part B, signed by the
new beneficiary and the proof that the new beneficiary meets all the
requirements of the original LC.
b) If the employment
based preference petition has already been approved and forwarded to the National Visa Center (NVC) or a U.S.
Consulate, the employer must write to the NVC or the Consulate requesting that
the petition and the LC be returned to the INS office which processed the case.
Once returned, the employer must then follow the procedure in (a) above.
These DOL rules permitting
substitution of aliens in the original LC mean that the same priority date
assigned by the filing of the original LC can be used by the original employer
with a new alien and the original alien with a new employer. Under the
INS rules on retaining priority dates, the original
alien may retain his original priority date when changing jobs, provided his LC
and his immigrant petition have been approved prior to the filing of a new
preference petition by his new employer. The new employer would in fact have to
file a fresh LC and a new I-140 preference petition but the alien would be
allowed to preserve the original priority date, giving him a more beneficial
place on the immigrant waiting list. If the original LC had been approved but
no I-140 had been filed or it had been filed and denied or revoked for any
reason, the alien’s priority date from the original petition would be lost.
2.
Relocation of the Employer or Alien
Often an employer may change its
location or the alien may be assigned to a new work location, after the
original LC has been approved.
A change of location that moves the
job opportunity away from the original ‘area of intended employment’ will mean
that the approved LC will no longer be valid. This is because the certification
was based on the unavailability of U.S. workers within that area and on
the lack of an adverse effect to the wages and working conditions of similarly
employed workers within that area.
A change of location within the
‘area of intended employment’ does not affect the validity of an
approved Labor Certification. The previous policy was that it was the DOL who
had the primary responsibility for approving amendments to a change of location
within the area of intended employment. This meant an additional step for the
employer - requesting an amendment from the original certifying officer.
However, since 1992, the new policy has been that all changes to the location
must be evaluated by the INS as part of its adjudication on the EB preference
petition. The change of address must be reflected on the preference petition
and the INS will determine, (though it may refer the matter to the DOL for
advice), whether the approved LC continues to be valid in view of the changes
to the work location. Any location ‘within the normal commuting distance’ of
the original location of employment will be considered the same area of
intended employment and the LC will remain valid. Any location within a
Metropolitan Statistical Area (MSA) is deemed to be within the same area of
intended employment if both locations are within the same MSA. When locations
are not within the same MSA it may be more difficult for the INS to determine
the ‘normal commuting distance’ and an advisory opinion from the DOL may be
sought, which could delay the adjudication of the EB petition.
If the Employment based I-140
petition had already been approved by the INS and the job location then
changes, the employer must file a new I-140 petition, with the new location,
with the INS service center having jurisdiction over the new location but with
reference to the earlier approved petition. Even if the change in location is
within the same area of intended employment, the INS procedure still requires
that a fresh petition be filed and the employer cannot wait to do this at the
time the alien files for his adjustment of status. Hence in cases where the
petition has already been approved by the INS, though an amendment from the DOL
is no longer required, the extra step of filing an amended petition with the
INS, is still necessary.
An LC is valid only for the
employer to which it is issued. Hence unless a merger, acquisition or
reorganization creates an employer who may be considered a
‘successor-in-interest’ to the original employer, the LC might no longer be
valid.
Once again, the changed DOL policy since 1992, requires that it is the INS which will determine, whether the new entity filing the employment based petition is the same as, or a ‘successor-in-interest’ to the original entity. If the employer filing the petition cannot be considered a ‘successor-in-interest’ to the employer in the approved LC, the job opportunity as approved no longer exists because the original employer no longer exists.
To determine this, the INS has
proposed the following rule: a ‘successor-in-interest exists when the new
employer has ‘substantially assumed’ the duties, rights, obligations and assets
of the original employer. In addition the new employer must offer the same
wages, the same job and continue in the same type of business, as the original
employer and as stated in the original LC.
The rule is easiest to apply when
dealing with large corporations which almost always involve stock purchases,
making it clear that the acquiring company or the new company being created by
the merger is the ‘successor–in-interest.’
In smaller companies where
acquisitions involve purchase of assets rather than stock it is necessary to
determine whether the purchasing company has really acquired all the rights and
obligations of the original employer. In addition if the original company goes
out of existence before the acquiring company takes over its assets, the time
gap has been held by INS to mean that the job opportunity has ceased to exist
and the LC is no longer valid.
Changes in ownership of a sole
proprietorship and setting up of a new partnership after dissolving the old one
(even if most of the partners remain the same), will not be considered to be
the ‘same employer’.
If an employment based petition
had not been filed by the original employer, the INS rules require the new
employer to submit the I-140 petition with the INS Service Center having
jurisdiction over the intended place of employment along with the following
evidence: (1) that the new employer is the ‘successor-in-interest’; (2) that
the change in ownership has been completed; and (3) that the new employer has
the ability to pay the alien’s salary and had the ability to pay at the time of
filing the original LC application.
If the original employer had
already filed or received approval to an employment based petition, the new
employer must file a fresh I-140 in order for the INS to evaluate the
‘successor-in-interest’ issue and whether the LC continues to remain valid.
The DOL should be informed of any changes
in salary that occur during the Labor Certification process; failure
to do so may be construed as fraud. Increases in salary that occur before the
recruitment process have little impact since they can be reflected in the
advertisements etc. Increases in salary after the recruitment process can cause
problems because the job had been advertised and offered for less than what the
alien is now receiving.
If the job was offered at the
prevailing wage and the alien now receives a raise, the DOL might consider this
unfair and direct the employer to conduct further recruitment.
If the job was offered with a
salary range starting with the prevailing wage and now encompassing the new
salary, there should not be a problem since the salary range is acceptable for
LC purposes.
Similarly, if the job was offered
at a flat rate already above the prevailing wage, it could be argued that the
increase does not affect the fairness of the recruitment campaign.
If the salary increases after the
LC has been approved, the INS will have to determine whether the increase
is to be expected and so not have an effect on the approval to an EB petition.
Annual increases of 5-10% are to be expected but large increases, which are
clearly out of proportion to the original salary, may be viewed with suspicion.
The INS may view this as being due to a significant change in job duties and
responsibilities, which would undermine the original approved LC.
5.
Changes in Job Title or Duties
If the job is no longer the same
as the one for which labor certification was approved, the LC can no longer be
valid. Substantial changes in the job duties would imply that the alien is now
filling a different job from the one approved in the labor certification. A
promotion or change in job title does not by itself mean the alien is filling a
new job. The key issue is the duties that he performs. The addition of minor
duties should not affect the validity of the LC. However the replacement of a
substantial portion of the original duties with new duties, specially the
addition of managerial duties, would constitute significant changes to the job
duties that would affect the validity of the LC.
The employer would need to affirm, at the time of the alien’s adjustment of status or interview, that it continues to offer the alien full time employment in the job position originally filed for. If the position has now changed, such an affirmation could be construed as fraud. Given the very serious consequences of such fraudulent declarations, an employer should file a new LC and undertake the process again if there are material changes to the original position or duties.
CONCLUSION: An approved LC is
valid indefinitely unless the INS or a U.S. Consulate is led to a finding that
it was issued due to fraud or misrepresentation. However, as noted above, the
indefinite validity of the LC can be affected by changes to other important
factors such as a change of employer, alien, location, and salary and job
duties. These changes, if held to be material by the INS, would lead to a
denial of an employment based preference petition, even in the absence of fraud
or misrepresentation.
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and may not apply to any specific or particular circumstance. It is not to be
construed as legal advice and does not establish an attorney-client relationship
between The Law Offices of Cyrus S Nallaseth and the viewer.