The new Department of Labor Regulations for the PERM process came into effect on July 16, 2007.

Most employers who wish to permanently employ an alien must first file with the U.S. Department of Labor (USDOL), and obtain approval of, ETA Form 9089, entitled Application for Permanent Employment Certification, hereafter referred to as "PERM Application". Once approved by the USDOL, the PERM Application is filed with Form I-140, entitled Petition for Immigrant Worker, hereafter referred to as "I-140 Petition", with the U.S. Citizenship and Immigration Services (USCIS). The USCIS must approve the I-140 Petition, and an immigrant visa must be available, in order for an alien to be eligible to obtain Permanent Resident Status ("Green Card") in the United States.

In order to limit the acquisition and use of permanent labor certifications, as well as enhance program integrity and reduce the incentives and opportunities for fraud and abuse related to the permanent employment of aliens in the United States, the U.S. Department of Labor, Employment and Training Administration, has amended its regulations to prohibit the substitution of aliens on labor certification applications, limit the validity period for labor certifications, and mandate the payment of costs related to the labor certification be borne exclusively by the sponsoring employer.

Substitution of Alien Beneficiaries

The new DOL rule prohibits the substitution of alien beneficiaries on labor certifications after July 16, 2007. This prohibition applies to all pending permanent labor certification applications and to all approved permanent labor certifications with the exception of substitution requests currently pending with or already approved by USCIS.

Modification

The new DOL rule prohibits any modifications to permanent labor certification applications once they are filed with the USDOL.

Validity Period of Permanent Labor Certifications

All permanent labor certifications approved on or after July 16, 2007 will expire 180 calendar days after certification unless filed prior to expiration in support of an I-140 Petition with USCIS. Likewise, all certifications approved prior to July 16, 2007 will expire 180 days after July 16, 2007 (which is January 12, 2008) unless filed in support of an I-140 Petition with USCIS prior to the expiration date.

Sale, Barter, Purchase and Certain Payments

The new rule prohibits the sale, barter, and purchase of applications and approved labor certifications, as well as certain payments to employers in compensation or reimbursement for the employer's costs incurred to obtain labor certification. This ban applies to all such transactions on or after July 16, 2007.

In regard to the employer's obligation for the payment of costs, the USDOL regulations require that the employer pay all costs related to the preparation, filing and obtaining of labor certification. Specifically, such costs include attorney fees, advertisement costs, and any other expenses. Moreover, the employer is prohibited from transferring or charging back any costs incurred to the alien whether it be in the form of kickbacks, wage withholdings, financial incentives, and lump sum reimbursements, as well as non-monetary transactions, such as free labor.

The regulations exempt certain third-party payments from this prohibition, allowing certain payments be made in connection with labor certifications, where there is a legitimate, pre-existing business relationship between the employer and a third party, and the work to be performed will benefit that third party.

Debarment and Program Integrity