DOL Interim Instructions on Substitutions in Approved Labor Certifications

Directive: FIELD MEMORANDUM NO. 37-95

TO: ALL REGIONAL ADMINISTRATORS

FROM: BARBARA ANN FARMER
Administrator
Office of Regional Management

SUBJECT: Interim Procedures for Substituting Alien Beneficiaries on Approved Labor Certifications

1. Purpose. To provide interim instructions for processing requests for substitution of alien beneficiaries on approved labor certifications.

2. Reference. 20 CFR Part 656; Memorandum dated February 14, 1990, from the Administrator, Office of Regional Management, to the Philadelphia Regional Administrator, Subject: Substitution of Alien Beneficiaries on Approved Labor Certifications.

3. Background. On October 23, 1991, an interim rule was published by the Department of Labor to implement certain amendments to the permanent labor certification regulation at 20 CFR Part 656 required by the Immigration Act of 1990. The interim final rule which became effective November 22, 1991, amended ' 65.30(c)(2) by limiting the validity of labor certifications to the specific alien named on the application.

An action was filed in U.S. District Court seeking to enjoin the enforcement of the rule eliminating substitution on the grounds that the Department of Labor had failed to comply with notice and comment provisions required by the Administrative Procedures Act (APA). The District Court granted summary judgment in favor of the Department on July 1, 1992. The plaintiff appealed and in Koortitzky v. Reich, 17 F.3d 1609 (D.C. Cir. 1994), the Court of Appeals held that DOL promulgated its 1991 amendments to 20 CFR 656.30(c) in violation of the APA. The Court of Appeals remanded the case to the District of Court to fashion an order in accordance with Court of Appeal's opinion. On December 1, 1994, the District Court issued an order requiring the restoration of the regulation at 20 CFR 656.30(c) in force prior to November 22, 1991. Consequently, it is necessary to issue interim instructions for processing requests of alien beneficiaries on approved labor certifications. At the same time, the National Office is working with the Immigration and Naturalization Service (INS) to develop a Memorandum of Understanding to transfer operational responsibility for this activity to INS.

4. Action Required. Regional Administrators are requested to instruct alien labor certification staffs to follow the attached policies and procedures in processing requests for substitution of alien beneficiaries on approved labor certifications until further notice. They are similar to the instructions that were in place prior to November 22, 1991. The major difference is the requirement that the Certifying Officer (CO) who intends to deny a request for substitution follow the procedures for issuing a Notice of Findings and Final Determination at sections '' 656.25 and 656.26, respectively.

5. Inquiries. Inquiries may be directed to Denis Gruskin at 202/219-4369.

Attachment to FM No. 37-95

Instructions for Processing Requests for Substitution of Alien Beneficiaries on Approved Labor Certifications

I. BACKGROUND

An interim final rule, effective November 22, 1991, was published by the Department of Labor which limited the validity of labor certifications to the specific alien named on the application. On December 1, 1994, the District Court for the District of Columbia issued an order which had the effect of requiring the restoration of the practice of substituting alien beneficiaries on approved labor certifications by the Employment and Training Administration (ETA). The instructions and procedures below are similar to the ones in place prior to November 22, 1991. The major difference is the requirement that the Certifying Officer who intends to deny a request for substitution must follow the procedures for issuing a Notice of Findings (NOF) and Final Determination (FD) at ' 656.25.

II. INSTRUCTIONS AND PROCEDURES

A. Time Alien must be qualified.

The substituted alien must have met all of the job requirements at the time the original certification application was filed. The employer cannot require les of the substitute alien than it did of the U.S. workers who may have applied for the job.

B. Number of Substitutions.

Until a petition for adjustment of status filed under Section 245 of the Immigration and Nationality Act is approved, or an alien enters the United States to take up the certified employment, there is no limit on the number of substitutions that can be made on an approved labor certification.

C. New Form Required.

Each request for substitution must be accompanied by a new Application for Alien Employment Certification submitted on behalf of the alien to be substituted for the original alien beneficiary (See p. 105, Technical Assistance Guide No. 656 Labor Certifications.) Substitution requests shall not be made by crossing out or whiting out the name of the original alien beneficiary on copies of the original certification.

D. Labor Certification in Possession of Employer.

If the original labor certification has not been filed with INS and is still in the possession of the employer, it must be returned to the Certifying Officer (CO) with the request for substitution. If the original certification has been lost within 5 years of the date of certification, the employer can request a duplicate certification in accordance with procedures at ' 656.30(e) of the labor certification regulations.

E. Petition Pending with Immigration and Naturalization Service (INS).

In cases involving visa petitions filed with INS but not yet sent to a Consular Officer, the employer should write directly to the INS requesting: (1) withdrawal/revocation of the petition; (2) a letter from INS acknowledging revocation of the visa petition for the original beneficiary which the new alien will replace; and (3) a certified copy of the original certification filed in support of the visa petition. (Original labor certifications once filed with a preference petition become a part of INS's permanent records and cannot be returned to employer.) A copy of the letter from INS and the certified copy of the original certifications must accompany the substitution request submitted to the CO.

F. Visa Petitions Sent to DOS.

In cases involving visa petitions which have been adjudicated and sent to the Department of State by INS, the employer shall write to the appropriate Consulate or the National Visa Center in Portsmouth, New Hampshire, to have the visa petition and supporting labor certification returned to the approving INS office. The employer must then follow the procedures in the preceding paragraph and submit with its substitution request a copy of the letter from INS acknowledging revocation of the visa petition for the original beneficiary which the new beneficiary will replace, and a certified copy of the original certification filed in support of the new certification.

G. Required Documentation Necessary for Substitution.

Requests for substitution of beneficiaries shall not be granted in cases where the original certification, certified copy, duplicate, or certified copy and letter from INS, as appropriate, acknowledging cancellation/withdrawal of the petition cannot be submitted in support of the request. COs need not refer to the original files unless he/she has reason to believe that the returned certification has been altered in some way.

H. Approval of a Request for Substitution.

If a request for substitution is approved, the CO shall send the certified application containing the official labor certification stamp, and complete Final Determination form (FD) to the employer or, if appropriate to the employer's agent or attorney. The date of certification entered on the new Application for Alien Employment Certification shall be the date the CO grants certification. The date the original application was accepted for processing should be entered in the space marked "L.O." in the lower right hand corner of Part A of the new labor certification. The date the new request for substitution was received by the CO should be entered in the block designated "R.O." in the lower right hand corner of Part A of the new certification. The words "substitution filed" shall be entered in parenthesis behind the R.O. date.

I. Denial of a Request for Substitution.

A request for substitution of an alien beneficiary on an approved labor certification cannot be denied without first notifying the employer and the alien of the specific reasons for which the CO intends to deny the substitution request in accordance with the procedures for issuing a Notice of Findings (NOF) at section 656.25. If an NOF is issued because the request for substitution did not include the original labor certification, duplicate, or certified copy and letter from INS, the CO shall not approve requests for extension of time to obtain the required documentation.

If a rebuttal is submitted on time, the CO Shall review the documentation submitted by the employer in accordance with the documentation requirements in this directive. If any of the required documentation is not supplied by the employer, the applications shall be denied by issuing a FD. The FD must: (1) contain the date of the determination; (2) state the reason for the determination; (3) Quote the request for review procedures at section 656.26 (a) and (b); and (4) advise that, if a request for review is not made within the specified time, the denial shall become the final determination of the Secretary.

J. Administrative-Judicial Review.

Any requests for administrative-judicial review of denials of substitution requests shall be forwarded to the Board of Alien Labor Certification Appeals (BALCA).

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