Department of Labor

Asst. Secretary, Employment & Training Administration

200 Constitution Avenue, N.W., Room C-4312

Washington DC 200210

                        Re: Comments on ETA 20 CFR 656.11,12, 30

                        RIN 1205-AB42

Dear Department of Labor:

Our firm is engaged in the                            business and employs                      individuals in a range of occupations from                  to                   . Due to labor shortages a small, but key percentage of our workforce have been foreign nationals seeking labor certifications.

We believe that the proposed rule is salutary insofar as it intends to ban a “black market” in labor certifications.

However, the rule would also ban legitimate amendments for workers who would be required to start all over again after waiting years for a visa number if their jobs change, the employer relocates, or the position changes.  Current visa backlogs of five years could be much longer when the 360,000 cases at the Backlog Centers are processed. AC21 provided a measure of flexibility, but this rule will totally frustrate congressional intent to protect workers and employers against processing delays and replace that flexibility with a straight jacket.

We undergo great expense in recruiting, processing the application, and sometimes paying for legal fees and wish to be able to protect our interests in filling a vacancy when the worker moves on or no longer needs certification due to marriage to a US citizen, winning the diversity visa lottery or other reasons.

Both the employer and employee will be greatly disadvantaged by the prohibition of amendments and substitution and will be forced to undergo a cruel game of chance if life moves on, but the certification is frozen in time. The DOL’s concerns should be addressed by legislation which can deal with the complex issues, not with a rule which ignores realities of the workforce.

The 45 day limit on the validity of certification before filing with the DHS is much too short. An employer will need to obtain documentation of the workers work and education, and will need to obtain records of its ability to pay the required wage. A new company will have to place the worker on payroll for two full calendar quarters after filing. A 12 month limit is more realistic as it will allow for the two full calendar quarters, plus parts of the first and last quarter which, as partial quarters, will not provide DHS with a record of the full financial picture. Or the time will be needed to file the firm’s first income tax return.

We also believe that the provision banning payment of attorney fees is poorly stated to frustrate legitimate business practices and will deprive the worker or employer the counsel of their choice in violation of the attorney-client relationship. Once the worker is in nonimmigrant work status for six or seven years, the employer derives no clear benefit from certification and should not be required to pay for the process which is primarily of concern to the worker. If the employer pays the attorney, and the employee can not do so, then there will be no-one to look after the worker’s interest in the process. This provision protects no one.

We also believe the debarment procedures are premature in a program that has built in new anti-fraud safeguards that have been in place only one year: we should not presume that PERM safeguards are a failure and will not prevent fraud. The provision makes no allowance for a decision by the employer to withdraw the application due to change in workforce needs or for other legitimate reasons once it is under audit. Insofar as it may punish lawyers, this is best left to the state bar and criminal authorities.

 Sincerely,

EMPLOYER NAME

COMPANY NAME