Stern Elkind Curray & Alterman News and Updates

After many years, the Department of Labor has finally published its rule regarding the substitution of beneficiaries in the labor certification process. The new rule bans substitutions as of the effective date of the new rule (July 16, 2007). Employers can file substitution requests up to this date.

The new regulation also limits the validity of labor certifications to 180 days; I-140 petitions must be filed within 180 days of the approval of the labor certification. For petitions which were approved before July 16, the 180 days starts to run July 16, 2007.

Finally, the new rule prohibits employees from paying any of the employer's costs in the labor certification process. Therefore, employees who intend to pay all or part of the employer's labor certification attorney's fees should file prior to July 16, 2007. The regulation does not bar employees from paying the fees and/or costs associated with the employee. Our firm will be analyzing whether we can apportion the fees and costs we charge for the labor certification application to distinguish between fees and costs attributable to the employer and those attributable to the employee.

Employers and employees should act quickly if their labor certification application will be impacted by this new regulation.

Our law firm has moved quickly to respond to the substantial advancement in priority dates effective June 1st. Our firm has scheduled "choice appointments" with individuals whose priority dates will be current as of June 1st in order to ensure that applications for adjustment of status can be filed during the month of June in case there is a retrogression in visa numbers. Current clients of Stern Elkind & Curray who will have current priority dates in June, or other individuals who would like our assistance in preparing their applications for adjustment of status, should contact our office if they have not yet scheduled a choice appointment.

Earlier today, the President announced that Senate leaders from both parties had come to a compromise on a bill that would be a MAJOR overhaul to the immigration system. Details are still emerging, but among the highlights are:

- Enhanced border security, which must be completed before any guest worker or legalization plan is implemented
- Immediate status for undocumented people here, after payment of a large fine
- Restructuring and reduction of many family based categories
- Additional workplace verification and enforcement
- A merits-based "points" system that would allow immigration based on certain factors

THIS IS NOT A LAW, but is merely a proposal. As you will recall, last year the Senate put together a compromise bill that ultimately died when no compromise could be reached with the House of Representatives. We will see what happens with this one and how it evolves, as debate in the Senate is slated to begin next week. Please see this website for updates concerning legislative progress.

Some of these provisions are very onerous and, in our opinion, unworkable. There is still an opportunity to shape this law. Please contact your congressional representatives in the Senate and the House of Representatives to urge them to pass practical, humane immigration reform that will serve America's needs. Click on the link below for instructions on contacting your Senators and Representative.
http://capwiz.com/aila2/callalert/index.tt?alertid=9764951

On May 2, 2007, DHS Secretary, Michael Chertoff, announced that TPS for eligible nationals of Honduras, Nicaragua, and El Salvador, has been extended for an additional 18 months.

USCIS reported that as of April 30, 2007, it had received 19,887 applications towards the 20,000 H-1B Master's cap. By the time you read this posting the cap has, in all probability, been reached.

The Office of Management and Budget has finished its review of the DOL's proposal to bar substitution of employees in labor certification applications and to prohibit employees from paying the employer's attorneys' fees. The proposed rule also set a time limit for the validity of a labor certification application.

Now that the OMB has concluded its review of this regulation it is expected that it will be published soon. The exact details of the rule have not yet been released.