As the proposed rule now stands, the three major policy changes being considered are: (1) The elimination of the ability to substitute a new alien beneficiary into an existing labor certification; (2) the implementation of a 45-day time limit to file an I-140 permanent residency petition with the USCIS following certification of a labor certification application by the Department of Labor; and (3) a prohibition on the ability of an alien to pay for any portion of the labor certification process including attorney fees and any other costs associated with the filing.

The justification for these proposals is the Department of Labor's concern that the existing policies of allowing substitution of beneficiaries, of considering approved labor certifications indefinitely, and of allowing foreign nationals to contribute to the costs associated with such filings render the process subject to a high likelihood of fraud and abuse. The recent progress made by the Department of Labor with expediting its processing of labor certification applications via the PERM system adds support to the Department's position, at least as to the lesser burden now present when a new worker is contemplated for a position and in which under exiting policies companies would normally seek to utilize the existing ability to substitute a new alien beneficiary into an existing labor certification. The position of the Department of Labor is that now that labor certifications are adjudicated much more quickly, there is less detriment to having to refile a new application in the event that a new beneficiary is contemplated.

We anticipate opposition to these proposed policies to be substantial. The impact of the proposals and the additional components of the proposed rule (if enacted) would likely be far reaching and could significantly hinder the use of the labor certification-based permanent residency process as a whole - particularly if employer sponsors become solely responsible for the cost of such filings.

We will definitely keep you posted of the final terms of the rule when such are published some time after April 14, 2006. It is certain that the American Immigration Lawyers Association (AILA) and other immigration advocates will be rendering comments and opposing these proposals vehemently in the meantime.