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Two Bites At The Apple - DOL Poisons The Apple!

by Lori S. Melton

Recall that Brothers Grimm classic Snow White where the lovely princess accepts the poisoned apple from the disguised evil Queen? DOL has been dancing around, tempting immigration practitioners for months with a delicious PERM apple and we were all ready to take not one but two bites at it. Alas, the fairytale has taken a nasty turn and we have now discovered the apple is poisoned.

DOL issued a new FAQ on August 11, 2005, concerning multiple labor certification filings, that substantially revises prior and current practice in labor certifications. Historically, an employer could file more than one labor certification for an employee if the new filing involved a new job opportunity (i.e., if that employee's position changed or if the employee was relocated outside the metropolitan statistical area of the first filing). Today's FAQs no longer permits the "two bites at the apple" approach of filing multiple PERM labor certifications, even if the new case is for a different job opportunity.

Specifically, the FAQs address the issue of either two PERM cases filed for the same employee OR a PERM case and a regular/RIR case filed for the same employee. After August 31, 2005, if a PERM case is certified all other pending applications for the same employee filed under PERM will be denied. Similarly, if a case pending at a Backlog Elimination Center is certified, DOL will deny any pending PERM case for that same employee. Finally, if a PERM case is certified for an employee with a pending case at the Backlog Elimination Center, DOL will issue a Notice of Findings on the pending case. It is unclear though, exactly how DOL will be able to track multiple filings, particularly where cases are pending at the Backlog Elimination Centers and are not yet entered into the Backlog Elimination Center computer systems or whether those systems will be able to communicate with the PERM Centers' systems. It is also unclear how DOL will make a determination that more than one case exists for the same employer and same individual. For example, how can DOL be certain that Handsome Prince working at Fairytale, Inc. listed in the ETA 750A is the same Handsome Prince working at Fairytale, Inc. listed on the ETA 9089?

If, prior to August 31st, DOL inadvertently issues certification of more than one PERM case for the same employee, DOL will revoke all certified PERM cases for that employee except the first PERM case filed and certified. If DOL inadvertently certifies both the PERM case and a regular/RIR case for the same employee, DOL will revoke the PERM case.

For multiple PERM cases currently pending, employers can proactively withdraw the case they do not wish to pursue before August 31st. If not withdrawn, DOL will process only the last PERM case filed for the individual and will cease processing other pending cases.

If employers wish to file a new PERM case for an employee either with a pending PERM or traditional/RIR case, the employer must first make a formal withdrawal of the pending case OR have been issued a denial of the pending case in writing from DOL. To withdraw a pending PERM case, the employer can either utilize the online withdrawal option if the case was filed online or by mail if the case was filed by mail. Again, how DOL will know another case is pending is a mystery, given the lack of data on cases at the Backlog Elimination Centers. Still another mystery is how DOL will react if the employer files a new PERM case without first withdrawing a pending case. Will they simply reject the multiple filing through their electronic system? Or will the agency allow the new case to be filed so that consequences attached only after filing?

DOL admits that the new FAQs are a departure from prior practice, but states that prior practice was an "accommodation" because of the lengthy processing times for labor certifications. With the new streamlined PERM processing, such accommodations are no longer considered necessary by DOL.

The new DOL FAQs erroneously poisons the apple of labor certification filings. First, the "guidance" does not supplement the existing regulation, but rather contradicts and countermands it. Such new rulemaking must follow the notice and comment protections of the Administrative Procedure Act. Second, the FAQs are in clear contradiction with prior practice, the PERM regulation and the new ETA 9089 form. DOL has historically allowed multiple labor certification filings, so long as the filings represented distinct job opportunities. Such filings allowed employers the flexibility to relocate or promote employees during the lengthy adjudications and to ensure approval of the later filed I-140 and adjustment of status cases as they would reflect the employee's current role within the company. By eliminating this option, DOL is penalizing companies that need to relocate or promote employees who have been in the labor certification process for years. Harsh consequences, such as loss of priority date for 7th-year H extension purposes, will occur in multiple filing situations.

Further, the PERM regulation and ETA 9089 both require the employer to affirmatively opt to withdraw and refile a case under PERM. The new FAQs are contrary to this affirmative requirement, allowing DOL to unilaterally withdraw a pending case. Finally, it is uncertain how DOL plans to track multiple filings. With the Backlog Elimination Centers still unable to complete data entry on the over 340,000 pending cases in their offices and the PERM system's multiple programming glitches, it is unlikely that the two computer systems will have sufficient data to catch multiple filing issues in the near future. As detailed above, even assuming the two systems can interact, it is unclear how DOL can be certain that two cases are for the same individual and same company. Thus, even if the apple is poisoned, the poison appears to be somewhat benign at this time.

One thing is certain about the new DOL FAQs; we should not simply fall down and accept it as Sleeping Beauty was forced to do. Rather, this new guidance should and will be challenged, perhaps even in court, so that the fairytale of PERM can indeed have a happy ending for all.

Endnote: It appears that Snow White may get a happy ending after all. The FAQs were revised on August 24, 2005 to eliminate the section concerning multiple filings. DOL has indicated that they are reviewing comments and information forwarded by various stakeholders and will provide clarification on their earlier statements soon. The fairy tale continues!

About The Author

Lori S. Melton is an attorney at the Phoenix office of Littler Mendelson Bacon & Dear PLLC. She previously served as co-chair of the AILA Washington State Chapter's Department of Labor Liaison Committee and currently serves as co-coordinator of the Women in Immigration Law Interest Group for AILA National.

Lori S. Melton is the author of the article - Bonnie Gibson was incorrectly named as a co-author [Ed. 9/7/05].

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.