Question: My Company was petitioning in an employee for the Labor Certification.
We feel somewhat betrayed as we waited all this time for his Labor Certification to go through.
It has been certified by the Department of Labor and we do not now have an employee for the position.
Must we completely start over?
Answer: Actually, it is not necessary that you start all over with another future employee.
The Labor Certification
This is often the best way to eventually get a Green Card or Lawful Permanent Residency.
As I am sure you have discovered, the employer and the employee have to cooperate for several years for the eventual success of the Labor Certification.
Now that you have an approved Labor Certification for your company, normally you would file the Employment Petition. Next, you would file the Adjustment of Status application or the Consulate Processing application if the person is outside the U.S.
Since your future employee is no longer wanting or willing to go through with the rest of the procedure, you would normally have to start over the entire process from the beginning.
However, there is an exception.
If you can find another future employee who has the same basic qualifications and will work in the same position,
Then you can substitute in this employee.
Question: What exactly do you mean to ‘substitute’ in the new employee?
Answer: This term is exactly what it refers to.
Without starting from the beginning, another person can just jump into the shoes of the previous employee (who no longer wants to continue) and start from where he left off.
This means, you do not need to do another Labor Certification, nor do you need to wait all those years to continue.
You simply continue forward with the new employee.
Question: This sounds too good to be true.
Why would the law allow this?
Answer: It is because the Labor Certification itself does not really have anything to specifically do with the employee.
The Labor Certification process merely shows that there are no qualified workers to fill the position.
If you do everything correctly, you should have a new employee working for you in a very short time.
Substitute another employee for a PERM / immigrant petition?
Short answer: no — you generally cannot substitute the beneficiary on a filed PERM or certified ETA-9089 for requests submitted after July 16, 2007. A new recruitment and a new ETA-9089 (and then a new I-140) are the usual, compliant paths to sponsor a different employee.
Why substitution is restricted
The DOL has made substitution of an alien beneficiary on PERM applications prohibited for requests submitted after July 16, 2007; Schedule A labor certifications are likewise limited to the named alien except for substitutions approved prior to that date. See ETA-9089 instructions and 20 C.F.R. Part 656 for the regulatory framework.
Alternatives to substitution
- File a new PERM (ETA-9089) after completing the required recruitment for the job.
- File a new I-140 for the new beneficiary once the new PERM is certified (or rely on other immigrant-category bases where applicable).
- For nonimmigrant hires (H-1B, L-1, etc.), file a separate petition for the replacement worker (observe cap and program rules).
