Labor Certification Substitution

LABOR CERTIFICATION SUBSTITUTION

Currently, U.S. employers are allowed to substitute an alien named on a pending or approved labor certification with another prospective employee. The purpose for such substitution has been to maintain the “priority date” of the already filed labor certification application. Labor certification substitution can be employed in cases where the labor certification application is pending at the Department of Labor (DOL) or while an I-140 was pending with the USCIS.

USCIS will continue to accept I-140 petitions requesting labor certification substitution that are filed prior to July 16, 2007. Beginning July 16, 2007, substitution of a new prospective employee in the place of another who has an approved labor certification will not be allowed. Accordingly, if you are an employer, or a new prospective employee of an employer, who wishes to use a previously approved labor certification, time is of the essence. In order to use the previously approved labor certification, the I-140 petition must be filed before July 16, 2007.

With labor certification substitution, the petitioning employer files the I-140 petition on behalf of the new employee, based on another’s previously approved labor certification. In so filing, the petitioning employer preserves the priority date of the original labor certification. The priority date is considered that time at which the certification was accepted by the DOL for processing. Labor certification substitution is allowed only if the original beneficiary named on the approved labor certification has not obtained an employment-based visa or adjustment of status based on that labor certification application.

Also worth noting is that the new prospective employee seeking to substitute in and use a previously approved labor certification must have met all of the minimum education, training or experience requirements set forth in the original labor certification.

For labor certifications filed with the DOL prior to March 28, 2005, the I-140 petition must include a new form ETA-50, Part B signed by the substituted alien. For certifications filed on or after March 28, 2005, the petition must include a new form ETA-9089 signed by the substituted alien. In addition, notice of withdrawal of any pending or approved I-140 must be provided in writing.

As aforementioned, labor certification substitution will cease to be a viable option beginning July 16, 2007. Accordingly, if you are an employer who wishes to use a previously approved labor certification for another prospective employee, or are a prospective employee who wishes to use another’s previously approved labor certification, it is advised that you consult with an experienced attorney as soon as possible so that the I-140 may be filed before July 16, 2007.

Please note that this article is not legal advice and is not intended as legal advice. The article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article does not create any attorney-client relationship between you and the Law Offices of Kenneth U. Reyes, P.C. This article is not a solicitation.

Attorney Kenneth Ursua Reyes was President of the Philippine American Bar Association for 2005. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. Mr. Reyes is a Certified Family Law Specialist. He is a graduate of Southwestern University Law School in Los Angeles and California State University, San Bernardino School of Business Administration. He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 700, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail kureyeslaw@gmail.com; visit at www.kenreyeslaw.com

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