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Re-Filing Under PERM

by Cyrus Mehta and Elizabeth T. Reichard

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 under PERM.

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 the SWA.

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.

V. Conclusion

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

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; Cyrus D. Mehta & Elizabeth T. Reichard, Allowing On-The-Job Experience: How PERM Has Modified the Delitizer Standard (Jan. 7, 2005), at; Cyrus D. Mehta & Elizabeth T. Reichard, Requiring a Foreign Language under the New PERM Rule (Jan. 14, 2005), at

2 See Olivia Thuma, Changes in Foreign Labor Certification Processing (Nov. 12, 2004), at

3 See 20 C.F.R. § 656.30(d), 20 C.F.R.§ 656.31, 20 C.F.R. § 656.32.

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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