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Two Bites To The Apple?

The PERM re-filing procedure at 20 CFR 656.17(d)(1), has given rise to some controversy. The controversy centers on the language below:

"Withdrawing the original application in accordance with ETA procedures. Filing an application under this part stating the employer’s desire to use the original filing date will be deemed to be a withdrawal of the original application. The original application will be deemed withdrawn regardless of whether the employer’s request to use the original filing date is approved."
Some attorneys have argued that per the plain language above, a withdrawal of the original application occurs in two parts: (1) filing the application under PERM and (2) stating the employer's desire to use the original filing date. Hence, merely filing the application under PERM, without the employer explicitly stating his/her desire to use the original filing date, cannot be construed as a withdrawal of the original application. In other words, one has two bites at the apple.

However, elsewhere in the promulgation, DOL makes its intent unambiguously clear. At 69 FR 77342 (center column), DOL states:

"If the refiled application is determined not to be identical to the original application in accordance with § 656.17(d), the refiled application will be processed using the new filing date, and the original application will be treated as withdrawn."
If DOL contemplates that even non-identical applications will be deemed withdrawn under 20 CFR 656.17(d), it is logical to conclude that identical applications will be assuredly deemed withdrawn. While DOL can be held to its own awkward language in the rule, attorneys proceeding on the basis of the "two bites to the apple" idea may need to litigate the issue. DOL appears to contemplate a two-track procedure post-March 28th: one at the backlog reduction centers and another at the PERM centers. Should DOL claim in court that it has the authority to decide that choosing one procedure excludes the other, a court may well hold that this is a policy decision within DOL's ambit and discretion, and litigation along the lines of "two bites to the apple" may therefore fail.

With PERM, DOL has taken a major step on the path to using technology intensively in labor certification processing. We believe that the DOL database for backlog reduction will be harmonized in some way with the DOL database for PERM. While this may take some time, it will likely occur ultimately. What this implies is that "two bites to the apple" may not be possible practically as well as legally.

This is just one example, albeit a well-discussed one, of the many unexpected but critical issues raised by the PERM rule. ILW.COM will keep you on the cutting edge of PERM through Immigration Daily, books, and seminars.

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