payment from the alien. Employers should describe the payment and from whom,
and when appropriate clarify on the application, for the record, that the payment was
for an obligation that accrued prior to the effective date of this provision (ie, July 16,
2007). Employers answering “yes” to Question I-23 must be prepared, if requested
by the Certifying Officer, to explain and support the details of such payment.
What should
attorneys do who have entered into contracts where payments
from aliens for labor certification preparation and filing are either owed after
July 16, or owed prior to July 16 but not paid until after July 16?
Both because the Final Rule governs the payment or reimbursement of an
employer’s attorneys’ fees, and because an attorney is the employer’s legal
representative (and so stands in the place of the employer), the rule prohibits
payments to an attorney for the employer’s legal fees when such payments would not
be permissible directly to the employer. If the payment obligation accrued, however,
prior to July 16, the attorney has the right to seek the payment after the effective date
and should note on the application, for the record, when the obligation accrued.
For applications filed on or after July 16, 2007, if an attorney or firm completing the
application represents the employer, or the employer and alien jointly, and has either
sought or received a payment from the alien beneficiary that is directly related to the
employer’s labor certification costs as outlined in the regulation, the attorney must
answer “yes” to Question I-23.
Attorneys answering “yes” to Question I-23 must be prepared to explain and support
the details of such payments. The attorney should describe the payment, explain
that the payment was to the attorney and from whom, and when appropriate clarify
on the application, for the record, that the payment was for an obligation that accrued
prior to the effective date of this provision (ie, July 16, 2007).
Do the regulations require attorneys to modify contracts for dual
representation entered into before July 16, 2007?
The regulations state that an employer may not seek or receive payment from the
employee (or a third party except in specific circumstances) after July 16 2007.
Attorneys may represent employers in the preparation, filing and obtaining of a labor
certification and may be paid for that activity by the employer. Attorneys may
represent aliens in their own interests in the review of a labor certification (but not in
the preparation, filing and obtaining of a labor certification, unless such
representation is paid for by the employer), and may be paid by the alien for that
activity. To the extent, however, that a contract exists between the attorney and the
employee, which calls for the receipt on or after July 16 of payment for services
rendered on or after July 16 in connection with the preparation, filing or obtaining of a
labor certification, such services are to be paid for, under the regulation, by the
employer.
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