DOL Memo on Substituting Beneficiaries on Approved Labor Certifications
Date: March 22, 1996
Directive: Field Memorandum No. 28-96
To: All Regional Administrators
From: Barbara Ann Farmer
Administrator for Regional Management
Subject: Final Procedures for Substituting Alien Beneficiaries on Approved Labor Certifications
1. Purpose. To notify Regions that operational responsibility for making substitutions of alien beneficiaries on approved labor certifications has been transferred from the Employment and Training Administration (ETA) to the Immigration and Naturalization Service (INS), and to provide operating procedures for handling requests for substitution.
2. References. Field Memorandum No. 37-95, Interim Procedures for Substituting Alien Beneficiaries on Approved Labor Certifications.
3. Background. The Department of Labor (DOL) published an interim final rule on October 23, 1991, effective November 22, 1991, which limited the validity of labor certifications to the specific alien named on the labor certifications application. (See 56 Fed. Reg. 54920, 54930.) This interim final rule had the effect of eliminating the practice of allowing the substitution of alien beneficiaries on approved labor certifications. On December 1, 1994, the U.S. District Court for the District of Columbia, acting pursuant to the mandate of the U.S. Court of Appeals for the District of Columbia in Kooritzky v. Reich, 17 f.3d 1509 (D.C. Cir. 1994), issued an order invalidating that portion of the interim final rule which eliminated substitution of Labor certification beneficiaries. The order had the effect of reinstating the Department’s previous practice of allowing the substitution of alien beneficiaries on approved labor certifications. Consequently, it was necessary for ETA to issue interim instructions for processing substitution requests.
At the same time, ETA was working with INS to develop a Memorandum of Understanding to transfer operational responsibility for this activity to INS to ensure a more efficient and cost effective use of Government resources.
4. Action Required: Regional Administrators are requested to instruct Certifying Officers to:
a. Continue to process substitution requests initially received on or before the date of this FM using procedures in FM No. 37-95.
b. Return new substitution requests received after the date of this FM to the employer or the employer’s attorney or agent with instructions to file the request with INS along with the I-140 preference petition. Provide a copy of this FM with each request that is returned.
c. Give priority to INS requests for duplicate copies of labor certifications.
5. Inquiries. Direct questions to Denis Gruskin at 202/219-5263.
6. Attachment. INS Memorandum of March 7, 1996, from the Associate Commissioner, Office of Examinations, to all INS Field Offices, Subject: Substitution of Labor Certification Beneficiaries.
[Editor’s Note: The above referenced attachment was posted to AILA InfoNet on March 26, 1996 under the title “INS on Substitution of Labor Cert. Beneficiaries.”]
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