Lately, there has been a great deal of concern about "substituted" labor certification. Many rumors have been flying around the Internet and have caused a great deal of unnecessary worries. The purpose of this article is to review the law on this subject and provide people with information so that they are able to get on with their lives and not worry.

Until July of 2007, it was possible for an employer to substitute one employee into a labor certification that had been approved for another employee. The Department of Labor regulations that took effect July 16, 2007 eliminated the ability of employers to substitute labor certification beneficiaries. Unless filed with the USCIS before that date, any newly attempted substitutions would be rejected out of hand. Those already on file, however, would continue to be processed under the former rule allowing substitutions.

At this point, let's pause to make it clear that it has not been possible to file a substitution case since July 16, 2007. All substitution cases were filed prior to that date.

Some applicants are concerned that their I-140 petitions were based on a labor certification substitution. There is no cause for concern. The "substituted" employee is no different from the original employee once the I-140 has been approved. The fact that someone was substituted is of no importance.

Recently, the USCIS Administrative Appeals Office (AAO) issued a truly bizarre decision - even for them. This case involved an employee for whom a labor certification and subsequent I-140 were approved. On the basis of the approved I-140, the employee filed an application for adjustment of status. Almost two years later, the employee invoked his right to job portability under the AC21 legislation and moved to a different employer.

The original employer withdrew the I-140 and then substituted another employee into the approved labor certification. The new employee then filed for adjustment of status. The USCIS wound up approving that application before they got to the original employee's application. When they looked at the original employee's application, they denied it on the basis that the underlying labor certification had been used already. The employee appealed.

In a decision that reeks of ignorance of the law and common sense, the AAO upheld the denial. Without question, this decision will be overturned in federal court. There is neither a legal nor logical basis for it. Unfortunately, it is this decision that seems to be causing so much worry in the immigrant community.

Until it is overturned by the federal judiciary, there are certain things that need to be kept in mind about this decision. It is limited only to situations where all of the following circumstances are met:

• You are the beneficiary of a labor certification which was later filed as part of an approved I-140 package.
• The employer withdrew your I-140.
• The employer substituted another employer into "your" PERM and filed an I-140.
• The substituted employee filed an I-485 based on that I-140.
• In the alternative, you were substituted into a PERM approved for someone else after they had filed an I-485 and now you have filed an I-485 based on that same PERM.

Given that there have been no substitutions allowed since July 15, 2007, the pool of applicants who fit these criteria is rather small. Remember, unless two people have filed for adjustment of status based on the same PERM application, there can't possibly be a problem as a result of a substitution.

If these circumstances are present in your case, however, you need to consult with your lawyer (or get a lawyer if you don't have one) to discuss what can be done to protect your rights.

For everyone else, those who substituted into existing labor certifications, but where no one else has filed an I-485 based on that same LC, calm down and relax. There is nothing that you need worry about.