Re-Filing Under PERM
This article discusses the dilemma facing beneficiaries of labor certifications that have already
been filed under the existing system.1 Many of these beneficiaries,
as well as their employers, are anxious about whether they should re-file under the new PERM rule
for quicker processing of the labor certification application.
The writers were hoping that there would be some interesting revelations on this aspect of PERM
at the 2005 Midyear Conference of the American Immigration Lawyers Association in Los Cabos,
Mexico on January 21, 2005. The keynote speaker was William Carlson, Chief, Division of Foreign
Labor Certification, Department of Labor (DOL). Unfortunately, he did not reveal anything
significant that is not already known about PERM or the DOL’s backlog reduction policy. It
appears that the DOL is understandably grappling with the same issues as the immigration bar and
is yet to find answers. However, the little that Mr. Carlson did reveal or confirm would still be
helpful to those who already have labor certifications in the pipeline and need to make decisions
I. DOL’s Backlog Reduction Policy
One key issue is how long will existing labor certifications take to get processed under DOL’s
backlog reduction policy.2 In New York, for instance, applications
filed prior to April 30, 2001 are still pending with the State Workforce Agency.
Mr. Carlson indicated that if the DOL got the funding, the backlogs would be cleared in 25-30
months. The backlog will be cleared using the First In First Out (FIFO) principle, regardless of
location where the case was filed. The backlog reduction would start with the oldest cases that
are now in the Regional Offices of the DOL. While the main backlog reduction centers would be in
Philadelphia and Dallas, satellite backlog centers would be set up in New York, San Francisco and
Boston. At present, the backlog reduction effort is limited to front end work, which is inputting
the data contained in the already filed labor certifications into a computerized systems. While
no actual adjudications have commenced on applications, employers are receiving letters to
confirm that they are still interested in processing the applications.
We expect the evolution of one national standard for adjudicating backlogged cases. Thus, former
regional peculiarities (a preference for 4 ads in one region vs. 3 ads in another region) will
probably be eliminated. It remains to be seen whether this new standard will be more liberal than
the standard that we are used to in the various regional DOL offices.
While the backlog reduction efforts are already underway, Mr. Carlson stated that the “backlog”
will truly become a reality for the DOL once PERM takes effect on March 28, 2005. The DOL will
need to prioritize on reducing this backlog in order to ensure that PERM runs smoothly. The
writers can therefore only predict that it is not likely that the DOL will adopt a very strict
standard in its quest for clearing the backlog, and many in the immigration bar are predicting
that already filed labor certifications may be approved rather easily, even though it may happen
within a time frame of 25-30 months or longer.
II. Re-filing Under Perm
The new PERM rule does not provide for a true conversion of the old case into the new system.
Instead, it allows the application to be re-filed under PERM before a job order is placed by the
SWA. Under limited circumstances, the original filing date will be preserved. Retaining the
original filing date is absolutely crucial for people affected by the retrogression in the
Employment-based third preference numbers or for those who wish to continue to take advantage of
the seventh year H-1B extension.
To preserve the old filing date, the new application under PERM must be filed for the “identical
job opportunity.” This term is defined as applications which have the SAME employer, alien, job
title, job location, job description and minimum requirements. If a request is made on the new
PERM application that the old priority date be retained, the old labor certification will get
withdrawn from the system. In the event that the PERM application is not deemed to be identical,
the new application will be assigned a new filing date and the old application will get
withdrawn. Mr. Carlson hinted that making the “identical job opportunity” determination could
create its own bottleneck within the DOL and that they were making sure that their technology
would be efficient enough to prevent such a development.
Unfortunately, Mr. Carlson indicated that “identical job opportunity” means exactly what it says.
Thus, even a minor change, such as the employer moving across the street since the prior filing,
will not be considered an identical job opportunity.
The question that Mr. Carlson was unable to answer was whether it will be possible to file a new
labor certification under PERM for a non-identical job (and not request the same priority date)
and thereby preserve the old labor certification in the system. In other words, will it be
possible for an employer and foreign worker to take a chance by filing under PERM with a new
priority date but still keep the old application in place as a back up? Such a strategy would
also protect one who wants to take advantage of the 7th year H-1B extension through
the old labor certification that has been filed and pending for one year but still hope for an
approval under the new PERM application.
Although the old labor certification should be preserved when the new PERM application does not
request for the preservation of the old priority date, it is not clear whether the DOL will agree
to such an approach. Since the whole system will be computerized, a new PERM filing, regardless
of whether it is being made to request the old priority date or not, could result in an automatic
withdrawal of the existing filing. If the PERM case is ultimately denied, both labor
certifications would then be lost.
In the opinion of the writers, it is advisable that people with existing labor certification
filings should not file new PERM applications, unless the withdrawal of the old filing, if it
does indeed occur, does not put them in jeopardy. We will doubtlessly get more clarity on this
procedure once PERM is up and running from March 28, 2005.
III. New Filings Under PERM
Should employers who have not yet filed to rush to file before March 28? The old system is a
known one. It does not have rigid advertising requirements for employers as the new PERM rule. It
is likely that an application filed before March 28 will be subject to a 25 -30 month processing
schedule but may not be subject to a very strict adjudicatory standard. An employer will also not
be audited under the old system, and will have a chance to respond to any objections before the
case is approved. That approval will be final. If one does not mind waiting, then filing under
the existing system prior to March 28 could still be a good idea. This is particularly the case
where the employer has completed the recruitment procedure and does not want to undertake the
additional recruitment set forth in PERM.
PERM, on the other hand, is new and a big unknown. After March 28, PERM will be the norm and
everybody will have to get used to the new system. Thus, those who are able to comply with the
new PERM advertising requirements, and are willing to take the chance of being rewarded with a
quick approval under PERM, after properly complying with the new requirements, may want to wait
until March 28 and beyond to file the labor certification.
IV. Concerns About PERM
While several concerns were expressed about PERM at the AILA conference, it is hoped that the
DOL, along with stakeholders such as AILA and other groups, will be able to resolve them.
i) Perm Will Reward The Dishonest Filer
The main concern is that PERM will invite abuse, and will reward the dishonest filer. If an
employer were to honestly indicate on the PERM form that the job involves requirements that can
be justified through business necessity, will such an application automatically be audited? If
knowing that such an assertion would result in an audit, a dishonest employer would not answer
this question on the form in the affirmative. The PERM program is also likely to give the
impression to employers that attorneys are no longer required and it may be tempting for the
filer to complete the form without preparing the documentation to support the attestations. PERM
is also likely to encourage notarios and even unscrupulous attorneys to represent an employer on
the cheap without understanding the true implications of the process. Once the program is mired
with fraud, it is bound to get bogged down. The DOL will be inclined to audit many more
applications, which would result in new bottlenecks and backlogs.
ii) Lack of Clarity on Codes under SOC/O*NET
Related to this concern is the scrapping of the Dictionary of Occupational Titles and the mandate
to rely solely on the SOC/O*NET codes. These classifications are more generic and subject each
occupation to a vague Standard Vocational Preparation (SVP) code, such as 7>8. An SVP of 8
requires 10 years of preparation of the job through education, training and experience. An SVP of
7 requires 4 years of preparation of the job through education, training or experience. Thus, a
job signaling an SVP of more than 7 but less than 8 is rather vague. Thus, does a Systems Analyst
(which is subject to 7>8) have an SVP of 7 or 8? In the old Dictionary of Occupational Titles,
the SVP for a Systems Analyst was clearly 8. Under PERM, it is not certain whether the SVP of
more than seven but less than 8 means an SVP of 7 or 8 or somewhere in the middle! Thus, an
employer who is filing for the position of Systems Analyst and requires 5 years experience may be
exceeding the normal requirements for such a position (7>8)and would thus need to justify this
excess through business necessity.
iii) Determining the Appropriate Level in the OES system
Prior to filing a PERM application, employers must first obtain a prevailing wage determination
from the State Workforce Agency. PERM also mandates a four level wage system instead of the two
tier system that we now have in the OES wage survey. It remains to be seen how the SWA will slot
people under the new four level system and whether this process will create bottlenecks within
iv) Lack of Standards on Invalidating Approved Labor Certifications
Another concern about the new PERM rule involves the ability by the DOL, the Department of
Homeland Security (DHS), and the Consul of the Department of State (DOS) to invalidate already
issued labor certifications.3 The regulations provide some guidance
for the DHS and DOS insofar as invalidation is concerned. The DHS and the DOS can invalidate a
labor certification “upon a determination, made in accordance with those agencies’ procedures or
by a court, of fraud or willful misrepresentation of a material fact involving the labor
certification application.”4 The regulations, however, are not
clear as to what grounds the DOL can use in order to invalidate an already issued labor
certification. They merely state that a “Certifying Officer in consultation with the Chief,
Division of Foreign Labor Certification may take steps to revoke an approved labor certification,
if he/she finds the certification was not justified.” 5
Although they provide procedure by which the Certifying Officer (CO) can invalidate
certification, they do not provide the CO with a set of standards by which he/she can determine
if a labor certification is unjustifiable. Failure to identify standards may be cause for
concern as it will give the DOL wide latitude in revoking labor certifications.
v) Limited Entry on Form for Alternative Requirements
A more practical concern that was raised involving the limited amount space allotted in Section H
of Form ETA 9089 for describing acceptable alternative experience for the job opportunity.
Specifically, only one line is provided to describe each of the following acceptable
alternatives: field of study, education level, and work experience. This may be problematic as
it will not allow the employer to fully describe acceptable alternatives. This hopefully will be
resolved before March 28, 2005.
Both employers and beneficiaries of labor certification applications should pay special attention
to the above concerns when determining whether or not to re-file. They should also take great
pains in determining whether the position is in fact an “identical job opportunity” if they do
not want to lose the advantage of the old labor certification filing.
This article originally appeared on http://www.cyrusmehta.com/.
1 This article is one of a series of articles written by the authors
about PERM. See Cyrus D. Mehta & Elizabeth T. Reichard, Department of Labor Publishes Long
Awaited PERM Rule (Dec. 30, 2004), at www.cyrusmehta.com; Cyrus D. Mehta & Elizabeth T. Reichard, Allowing On-The-Job Experience: How
PERM Has Modified the Delitizer Standard (Jan. 7, 2005), at www.cyrusmehta.com; Cyrus D. Mehta &
Elizabeth T. Reichard, Requiring a Foreign Language under
the New PERM Rule (Jan. 14, 2005), at www.cyrusmehta.com.
2 See Olivia Thuma, Changes in Foreign Labor
Certification Processing (Nov. 12, 2004), at www.cyrusmehta.com.
3 See 20 C.F.R. § 656.30(d), 20 C.F.R.§ 656.31, 20 C.F.R. §
4 20 C.F.R. § 656.30(d).
5 20 C.F.R. § 656.32(a).
About The Author
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is the Chair of the Board of Trustees of the American Immigration Law Foundation (AILF) and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York (ABCNY) and former Chair of the Committee on Immigration and Nationality Law of the same Association. The views expressed in this article do not necessarily represent the views of ABCNY or AILF. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555.
Elizabeth T. Reichard is an Associate at Cyrus D. Mehta and Associates, P.L.L.C. She passed the July 2004 New York Bar Exam and is currently awaiting admission to practice law in New York. She is a 2004 graduate of Case Western Reserve University Law School, where she was the Editor-in-Chief of the Journal of International Law. She is the Secretary of the Board of Trustees of International Partners in Mission, an international non-profit organization working to empower women, children, and youth.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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