After PERM Approval DOL Allows Earlier Filing to Continue
Posted Oct 21, 2005
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The U.S. Department of Labor (DOL) confirmed on October 17, 2005 that it does not have an official policy to withdraw a pending labor certification that is being processed at a Backlog Processing Center (BPC) solely because the beneficiary obtained a PERM approval. This is an important clarification, due to a virtual panic created by a policy announced a few months ago, and then almost immediately retracted, regarding an employer's ability to have multiple labor certifications filed for the same person. This matter was the subject of our August 24, 2005 NewsFlash, DOL Retracts Earlier Position on Multiple Filings, available at MurthyDotCom.
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As a reminder to MurthyDotCom and MurthyBulletin readers, there is a box on the PERM application that asks whether the PERM case is a re-filing of a pending labor certification case. A re-filing must be identical to the initial filing. If approved and found to be identical, the new case will retain the priority date of the prior case. If this process is attempted by marking the re-filed box "yes," then the pending labor certification is withdrawn automatically. There has been a lot of speculation, however, as to what happens if there is a pending labor certification but the box is marked "no." For now, the DOL apparently will not withdraw the earlier filed and pending labor certification.
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This is good news, as many employers are filing cases under PERM for individuals who are beneficiaries of cases that are pending at the BPCs. The BPC cases are older and have earlier priority dates. Thus, once the BPC case is approved, many people will want to have the option to use that case as the basis for the green card, rather than the more recently filed PERM case. With retrogression, the time difference between using the BPC case versus using the PERM case could have an enormous impact.
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As with any policy, this DOL policy could change with little or no prior notice. Before the filing of a PERM case, when a labor certification is already pending at a BPC, the employer and employee should discuss these issues with a qualified, experienced immigration attorney to understand the possible ramifications and risks of a second filing.