More PERM FAQs from DOL - August 2005 Posted Aug 19, 2005; updated Aug 24, 2005 ©MurthyDotCom NOTE  On August 24, 2005, DOL released a statement that it will reconsider the position expressed in these FAQs regarding an employer's ability to have more than one labor certification application in process for a particular employee. For this update, see NewsFlash : DOL Retracts Earlier Position on Multiple Filings. ©MurthyDotCom The U.S. Department of Labor (DOL) issued additional Frequently Answered Questions (FAQs) on August 8, 2005. Previous FAQs are available under NewsBriefs in the PERM section of MurthyDotCom. In these latest FAQs, the DOL addressed the matter of an employer having more than one labor certification application in process for a particular foreign national at any given time. The announcement in this FAQ represents a significant shift in policy and practice and has wide-ranging implications, for "green card" strategy as well as for H1B seventh-year extensions. ©MurthyDotCom Can an Employer File Two Labor Certifications for the Same Employee?  The DOL addressed whether a labor certification (LC) can be pending both through a filing under the pre-March 28, 2005 system and the new PERM system for the same employee. The DOL had stated previously that they disfavored the practice, but had taken no formal action against it. There are a number of reasons an individual and his/her employer might want to maintain both cases. While individuals and employers are motivated by the potential of a fast approval under PERM, and a re-filing may be needed due to a change in position or job offer, they often need the old case for H1B seventh-year extension purposes. Additionally, older cases have older priority dates that may be particularly useful for those from certain countries, like India, mainland China, and the Philippines, affected by the retrogression of visa dates under the EB3 preference category. No one wants to disrupt a case for which s/he has been waiting for years. Therefore, many individuals and their employers were interested in keeping their pre-PERM cases pending while also filing under PERM. The DOL is trying to put an end to this practice and they have clearly stated that they will either deny or issue a Notice of Finding on the second case. There are, however, constitutional concerns over the legal basis for this DOL position, since there is no law or regulation prohibiting a second filing, particularly if the future position is different from the earlier position. ©MurthyDotCom What if the Job Offer Changes and the Employer Re-Files the LC?  In these latest FAQs, the DOL stated that, under PERM, an employer may not have more than one labor certification application actively in process for the same foreign national at any given time. This rule holds whether or not the same employer is offering a different job opportunity. So, if an employer files under PERM for an employee, and then the employer wishes to promote or relocate the employee, they cannot just file a new PERM application. If a new filing is needed, the employer will need to withdraw the first application before filing the second. Clearly, it would be best to decide upon a stable job offer prior to venturing into PERM. Once a labor certification is approved for an individual (PERM or pre-PERM) it appears that, under the DOL's recent position, the second pending application will be denied. ©MurthyDotCom Multiple Applications - What Happens?  The FAQs state that after August 31, 2005, once a labor certification (PERM or pre-PERM) has been approved for a particular individual, all other PERM applications filed by the same company for that person will be denied. This is true even if the job opportunity is different. Therefore, if a PERM case is approved, any other PERM cases filed for that person by the same employer will be denied. Additionally, if a pre-PERM case is approved through the Backlog Processing Centers (BPCs), then any pending PERM case filed by that particular employer for the individual will be denied. ©MurthyDotCom Due to differences between the PERM regulations and pre-PERM regulations, a pre-PERM case cannot be directly denied following the approval of a different labor certification for the beneficiary. Therefore, once one labor certification application of any type has been certified, a Notice of Finding (NOF) will be issued for any other application/s filed under the pre-PERM regulation by the employer for that specific foreign national. The FAQ did not indicate what the NOF would require of the employer. ©MurthyDotCom What Happens if There are Two Approvals by Mistake?  If the DOL inadvertently certifies two labor certifications for the same foreign national, filed by the same employer, one through the BPC and one through PERM, the PERM case will be revoked. Therefore, this needs to be taken into account when filing the other stages of the green card case. It also needs to be taken into account in any labor substitution case, as an approved labor certification could later be revoked on this "no-double-approval" basis. ©MurthyDotCom What if the Employer Wants to File a PERM Case after a Prior LC Filing?  If an employer wants to file a new application for a particular foreign national, and there is already a labor certification pending for that individual, the employer may not file the new case until the employer formally withdraws the previously-filed application or the employer has been notified, in writing, that the previous case was denied. ©MurthyDotCom What if I Already Have Two Cases Pending?  If an employer has multiple labor certifications filed for a particular foreign national, the employer is required to withdraw all applications besides the one under which the employer wishes to proceed. After August 31, 2005, if multiple applications are still pending under PERM, the DOL will process the application most recently filed and deny all the rest. Otherwise, if there are multiple applications pending under PERM and the pre-PERM regulations, the DOL will follow the procedures outlined above. ©MurthyDotCom Rationale for the DOL Position   ©MurthyDotCom The DOL acknowledges that, in the past, they allowed the filing of multiple applications by a particular employer for the same beneficiary if the job opening was different. This, according to the DOL, was done to accommodate changes in job opportunities that occurred while the labor certifications were pending, often for years. They no longer feel this is necessary, however, since the PERM processing times have reduced labor certification processing from several years to a few months. ©MurthyDotCom Conclusion  ©MurthyDotCom It appears from this new policy that the DOL will only deny or withdraw approvals of cases after at least one labor certification has been certified. It is our understanding that the American Immigration Lawyers Association (AILA) is currently discussing this policy of the DOL and the possible negative impact it may have on companies trying to take care of their employees in good faith. With 245(i) issues, retrogression for many categories on the horizon, and various other matters that may be significantly impacted by this DOL position, we at The Law Office of Sheela Murthy will continue to advocate for the to DOL take a more moderate position on this challenging subject. © 2005 The Law Office of Sheela Murthy, P.C. All Rights Reserved
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