After many years, the Department of Labor has finally published its rule regarding the substitution of beneficiaries in the labor certification process. The new rule bans substitutions as of the effective date of the new rule (July 16, 2007). Employers can file substitution requests up to this date.

The new regulation also limits the validity of labor certifications to 180 days; I-140 petitions must be filed within 180 days of the approval of the labor certification. For petitions which were approved before July 16, the 180 days starts to run July 16, 2007.

Finally, the new rule prohibits employees from paying any of the employer’s costs in the labor certification process. Therefore, employees who intend to pay all or part of the employer’s labor certification attorney’s fees should file prior to July 16, 2007. The regulation does not bar employees from paying the fees and/or costs associated with the employee. Our firm will be analyzing whether we can apportion the fees and costs we charge for the labor certification application to distinguish between fees and costs attributable to the employer and those attributable to the employee.

Employers and employees should act quickly if their labor certification application will be impacted by this new regulation.