Substitution of Labor Certification Beneficiaries
Subject: Substitution of Labor Certification Beneficiaries
Date: 07 Mar 1996
To: All Regional DirectorsAll District Directors (including foreign)
Director, Office of Administrative Appeal
All Service Center Directors
All Officers in Charge
Deputy Director, IOA, Glynco, GA
Deputy Director, IOA, Artesia, NM
Under Department of Labor (DOL) guidelines which existed before the enactment of the Immigration Act of 1990 (IMMACT 90), sponsoring employers were able to substitute a qualified alien for the original alien beneficiary after issuance of a labor certification. The Circuit Court of Appeals for the District of Columbia recently invalidated a DOL regulation which eliminated substitution. As a result of this decision, employers may request substitution of labor certification beneficiaries. This instruction will explain the background of labor certification substitution as well as set forth procedures to process requests for substitutions.
Background
Before the enactment of IMMACT 90, DOL guidelines allowed employers to return an approved labor certification and submit an identical application on behalf of a similarly qualified alien within six months of the date of certification. See Employment and Training Administration, Technical Assistance Guide No. 656, L. 656.30(1)(b). Following and adverse court decision (see Medellin v. Bustes, 854 F.2d 795 (5th Cir. 1988)), the DOL removed the six-month limitation. Under the pre-IMMACT 90 procedures if the employer already submitted the labor certification in support of an employment-based petition to the Service, the employer initiated the substitution process by requesting either the Service or the Department of State to certify a copy of the labor certification and send the certified copy to the employer. The employer, in turn, would forward the certified copy to, and request a substitution from the DOL Regional Certifying Office. If the Regional Certifying Office approved the substitution, the Service could adjudicate a new employment-based petition.
As part of its interim regulations implementing IMMACT 90, the DOL eliminated labor certification substitution. See 56 FR 54920-54930 (Oct. 23, 1991). The Court of Appeals for the District of Columbia recently enjoined enforcement of DOL’s regulation precluding substitution of labor certification beneficiaries, based on the Administrative Procedure Act. See Koorisky v. Reich 17 F.3d 1509 (D.C. Cir. 1994). As a result of this decision, employers may request substitution of labor certification beneficiaries. Since the Kooritsky decision, the Service has processed some requests for substitution pursuant to a May 4, 1995, DOL Field Memorandum. The DOL Field Memorandum reinstated the procedures which existed before the implementation of IMMACT 90. Based on the attached memorandum of understanding with the Service, the DOL has now delegated responsibility for substituting labor certification beneficiaries to the Service.
New Labor Certification Substitution Procedure
Pending Requests for Substitution
If a Service office is currently processing a substitution request under the May 4, 1995 DOL guidelines by certifying a copy of the labor certification and sending it to the employer, the office should complete the processing under those DOL guidelines. Any new requests for substitutions should be processed under the new procedures described below.
General Requirements
n The employer shall initiate the substitution process by filing an I-140 petition on behalf of the alien to be substituted with the appropriate service center and paying the required fee.
n The substituted alien must have met all of the minimum education, training, or experience requirements, as stated in Part A of the original Form ETA 750 filed by the employer, at the time the original labor certification application was submitted to the state employment office. The petitioner must submit documentation that the substituted alien meets the education, training, or experience requirement set forth in the original labor certification application.
n The employer must s
ubmit Part B of Form ETA 750, signed by the substituted alien.A. Labor Certifications which are in the possession of the employer
n The petitioner must submit the original labor certification with Form I-140 to the appropriate service center. If the original labor certification has been lost within 5 years of the date of certification, the service center will request a duplicate from the appropriate DOL Certifying Office. In order to approve the petition, the service center must have either the original labor certification or a duplicate copy which has been certified by the DOL.
n The service center will adjudicate the I-140 petition in the same manner as any other I-140 petition.
B. Labor Certifications which have been submitted to the Service with the original petition
n The petitioner must attach a photocopy of the original Form ETA 750, Parts A and B, a photocopy of the DOL certification, and a copy of a notice of approval (if any) of a previous Form I-140 petition to the new Form I-140 filed at the service center on behalf of the substituted alien.
n The petitioner must also submit a written notice of withdrawal of the initial I-140 petition which was based on the labor certification.
n The service center should ensure that the petitioner is not using the same labor certification more than once. The adjudicator, using the Central Index System, must determine whether the original labor certification beneficiary has immigrated or applied for adjustment of status based on the labor certification and I-140 petition filed by the employer. The adjudicator must also look up the status of any previous petition in CLAIMS.
n If the original I-140 petition with the labor certification is located at the service center, the adjudicator should retrieve the original petition, send out a notice of automatic revocation of the initial I-140 petition approval, and place the original labor certification with the second I-140 petition.
n If the original I-140 petition with the labor certification has been sent by the service center to a district office or suboffice, the adjudicator should contact that office and request that the petition be returned to the service center for revocation. Upon receipt and revocation of the original I-140 petition, the new I- 140 petition can be adjudicated. If the original labor certification beneficiary applied for adjustment of status based on the original I-140 petition, upon revocation of the original I-140 petition, the application for adjustment of status should be denied.
n If the original I-140 petition with the labor certification has been forwarded to the National Visa Center (NVC), the service center should issue a notice of automatic revocation and update CLAIMS accordingly. The service center may either request the NVC to return the original I-140 petition to the service center or send a VISAS 90 cable to the NVC or United States consulate. Once this has been completed, the service center may adjudicate the new I-140 petition filed on behalf of the substituted alien. If the adjudicator at the service center has reasons to believe that the photocopy of the labor certification is not a true and correct copy of the original or has been altered, the service center should withhold adjudication of the petition and request the National Visa Center to return the original labor certification with the I-140 petition to the service center.
C. Disposition of Substitution Requests
n If the service center determines that the substituted alien meets the minimum requirements set forth in the initial labor certification application as of the date that it was filed with the state employment office and the I-140 petition is otherwise approvable, the I-140 petition shall be approved and processed like any other I-140 petition. The priority date shall be the date which the original labor certification application was filed with any office within the employment service system of the DOL. See 8 CFR 204.5(d).
n If the service center determines that the substituted alien fails to meet the minimum requirements set forth in the labor certification application or otherwise fails to meet the requirements for substitution, the I-140 petition should be denied. The petitioner shall be given the opportunity to file an appeal from the denial of the substitution with the Administrative Appeals Unit.
If there are any question regarding this instruction, please contact Michael Straus, HQADN at (202) 514-3228.