Can I Substitute Another Employee?

Replacement Employee Definition

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?

immigration attorney
immigration

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 and then 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?

immigration attorney

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?

immigration

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.

Contact Us