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Simultaneous PERM And Old LC?

At the new 20 CFR 656.17(d)(1)(ii), the PERM rule pours cold water over attorneys who want to "upgrade" cases to PERM, since it throws into question the period of pendency of the labor certification application for 7th year H-1B purposes, by leaving the filing date to the discretion of DOL. This is particularly problematic, since for most backlogged RIR cases, the recruitment will be too stale to qualify for PERM "upgrading", and in view of how the backlog-reduction program is going, it may be a long, long time before these backlogged RIR cases are adjudicated. One way to get around this problem (in some cases) might be to file a new PERM application that is "non-identical" to the old pending case - the question is: is this a viable strategy?

To answer this question, one should take a close look at the new 20 CFR 656.17(d)(4) which defines a job opportunity as "identical" if "the employer, alien, job title, job location, job requirements, and job description are the same as those stated in the original application". Given that in the hypothetical scenario sketched out above, the employer, alien and job location will not change, and given that the job title has customarily been seen to be the employer's prerogative to state, but the DOL's prerogative to ignore, the answer to this question resolves to the issue of whether a change in job description and job requirements would qualify such an application as "non-identical" for purposes of a new PERM filing while still preserving the benefits of 7th year and beyond extensions through the old pending application. One might imagine, that given the passage of time spent waiting in the RIR backlog, a small change in job description and job requirements would be feasible for many applications.

Unfortunately, the answer clearly falls on how the DOL administratively defines the word "same" in the regulatory language defining "identical" quoted above. We believe that DOL will most likely define "same" to mean "substantially the same" and therefore most such new PERM applications will most likely result in a deemed withdrawal of old cases under the new 20 CFR 656.17(d)(1)(ii), with all that implies in terms of 7th year extensions, etc.

This illustrates the critical issues that attorneys face in the wake of PERM. ILW.COM will be following PERM very closely, and it is safe to say, more closely than anyone else, so all those interested in PERM developments should be sure to keep a close eye on this space. We encourage all those interested in preparing for PERM to read "The Lawyer's Guide To 212(a)(5)(A): Labor Certification From 1952 To PERM" by Gary Endelman. Readers may also want to check out our latest PERM seminar and THE PERM BOOK (both pages are updated regularly with new info as it arrives).

We welcome readers to share their opinion and ideas with us by writing to