SUBSTITUTION OF
ALIENS IN APPROVED LABOR CERTIFCATIONS
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.
The approved substitution request with the new LC once submitted to the INS with a new I-140 employment based preference petition, will be approved by the service center if it determines that the substituted alien met the minimum requirements set forth in the initial LC as of the date it was filed and if the I-140 is otherwise approvable. If however, the service center feels that the substituted alien fails to meet the minimum requirements set forth in the original LC, the I-140 shall be denied. The petitioner shall have the right of appeal to the Administrative Appeals Unit (AAU).
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.
The INS has proposed a rule which would make the
alien forfeit the original priority date only where the revocation of an
employment based petition was due to notice of fraud or misrepresentation and
that the priority date will not be lost when the revocation is due to
withdrawal of the job offer, death of the employer, termination of the
employer’s business or a change in the alien’s plans.
The INS has also proposed a rule that would make the priority date, in substitution cases, the date on which the employer requests the substitution. This rule would prevent the original and substituted alien from, both making use of the original priority date and would make the whole process less appealing for the employer. But the other advantages that substitution allows would continue to exist, such as, no expenditure on a new recruitment process or the risk that the new LC may not be approved because of changes in the labor market conditions.
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