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Statement of Need: The Immigration and Nationality Act of 1952, as amended, established the permanent labor certification (PERM) program. Through this program, an employer submits a petition to the Department of Homeland Security (DHS) requesting a visa to admit a certain immigrant alien to work permanently in the United States. This petition process requires the Secretary of the Department of Labor (DOL) to certify specific information to the Secretary of Homeland Security and the Secretary of State before DHS may approve the employer's petition request and the Department of State (DOS) may issue a visa to admit such alien. Specifically, DOL must certify that there is not a U.S. worker able, available, willing and qualified at the time of an application for a visa, and that the employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers. If DOL determines that there is no able, available, willing and qualified U.S. worker and employment of the immigrant alien will not adversely affect the wages and working conditions of similarly employed U.S. workers, then a permanent labor certification is granted. If DOL cannot make both of the above findings, then the application is denied. This proposed regulation is intended to enhance program integrity and reduce the incentives and opportunities for fraud and abuse. First, the regulation would eliminate the current practice of allowing substitution of alien beneficiaries on the certification applications. Second, the regulation would implement a 45-day period for employers to file approved certifications with DHS. Third, the regulation would expressly prohibit the sale, barter, or purchase of PERM applications and certifications and other related payments. Finally, the regulation would highlight existing law regarding fraudulent activity or falsifying information and corresponding sanctions for such findings.

Summary of the Legal Basis: This regulation is authorized by 8 USC 1182(a)(5)(A); INA §212(a)(5)(A).

Alternatives: The public was afforded an opportunity to provide comments on the Fraud and Abuse rule implementation when the Department published the proposed rule in the Federal Register (71 FR 7656).

Anticipated Costs and Benefits: The Department believes any potential increase in applications filed as a result of either employers withdrawing and then filing a corrected application or employers allowing a certification to expire and then filing a new application or recruitment costs associated with this rule would be more than offset by an anticipated reduction in average processing time because the Department will not expend resources to process as many fraudulent applications. Aliens will save money if they are not forced to pay employer expenses nor provide kickbacks to certain agents and employers. Any cost savings realized, however, will not be greater than $100 million.

Risks: This action does not affect public health, safety or the environment.