PERM : "Identical Filings" and Other Issues
Posted Feb 18, 2005
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The Chief of the Labor Certification Program at the U.S. Department of Labor (DOL), William Carlson, met with some members of the American Immigration Lawyers Association (AILA) on January 21, 2005, at the winter conference to discuss and answer some questions on PERM. Highlights from these discussions were released on February 4, 2005.
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Re-Filing : Identical Applications
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The DOL was asked how they interpret the requirement that, for re-filing and maintaining a priority date, the new case must be "identical." If an identical case is re-filed under PERM, the PERM case should be able to retain the earlier priority date of the original labor certification filing. If the cases are not identical, the priority date from the original filing is lost since that case is treated as withdrawn once a re-filing is requested. In such a case, the DOL will use the PERM filing date as the priority date. Therefore, the DOL's answer to the identical case issue is critical. The DOL answered that they are using a literal interpretation of the word "identical." In the example given, if the employer has moved to another address since the original filing - even if it is on the same street - the new case would not be considered identical!
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Based on the DOL's current position on this issue, it is advisable to think carefully before re-filing a case under PERM if the goal is to obtain a quick approval and retain the original filing date. With retrogression already affecting certain EB3 cases for nationals from mainland China, India, and the Philippines, and the possibility of the backlogs increasing for EB3 cases and EB2 cases for these same nationals, not being able to retain the original filing date for establishing the priority date could pose a substantial risk. The DOL has not answered the question of how a person losing the original filing's priority date would affect the ability to obtain one-year incremental H1B extensions. All employers and employees who are considering a re-filing under PERM should understand these issues and discuss them with a knowledgeable immigration attorney before re-filing a new application under PERM.
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Payment of Fees to the Employer
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The new PERM application asks whether the employer has been compensated for filing a labor certification. The DOL was asked whether this includes an employee's reimbursement for attorney fees relating to the labor certification. The DOL indicated that such a reimbursement should not trigger a "yes" response to this question.
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Issues Awaiting Further Guidance
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The DOL indicated that further information will be forthcoming regarding the four-tier prevailing wage system that is set to begin on March 8, 2005 and how the DOL will be using O*Net Job Zones in determining whether the minimum requirements are unduly restrictive. The DOL will also be providing guidance to the State Workforce Agencies (SWAs) regarding job order placement and the contents of job orders. Many of the SWAs already have released information on how they will address prevailing wages and their new forms to send in the prevailing wage request.
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We at The Law Office of Sheela Murthy appreciate this initial guidance on some important issues surrounding the preparation and filing of PERM cases. We look forward to further clarification on the filing PERM cases and shall continue to update MurthyDotCom and MurthyBulletin readers as more information becomes available.
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