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The Bible And PERM - On The Bleeding Edge

"To every thing there is a season, and a time to every purpose under the heaven:
A time to be born, and a time to die; a time to plant, and a time to pluck up that which is planted;
A time to kill, and a time to heal; a time to break down, and a time to build up;
A time to weep, and a time to laugh; a time to mourn, and a time to dance;
A time to cast away stones, and a time to gather stones together;
A time to embrace, and a time to refrain from embracing;
A time to get, and a time to lose; a time to keep, and a time to cast away;
A time to rend, and a time to sew; a time to keep silence, and a time to speak;
A time to love, and a time to hate; a time of war, and a time of peace."
(Book of Ecclesiastes, 3 - Old Testament)
We believe that the profound thought above is especially important to keep in mind when thinking of the new PERM rule. We have in mind here one particular application of the maxim "to every thing there is a season" - that now is not the time to be conservative in labor certification matters, and that aggressive interpretation and action is the correct course of action at this time of profound change in labor certification practice. In other words, those who are on the cutting edge of labor certs now will reap the benefits (for both their practices and their clients) in the future.

Unfortunately, being on the cutting edge sometimes means being on the bleeding edge. We were the first to raise the issue of "2 bites to the apple" under PERM - the issue of whether one can file the same application under both the current rule before March 25th and the PERM rule post-March 28th (see our comment in ID 12/30/04). When we raised the issue in the first few days after PERM was published, we questioned whether there would be 2 bites to the apple, basing our skepticism on the meaning of the word "identical" defined, contextually, as "same" at 20 CFR 656.17(d)(4). Our follow-up comment on this issue (see ID 1/31/05), we sought support for our skepticism in DOL's language in the preamble to the PERM rule at 69 FR 77342 (center column), which seemed to suggest that DOL would not take kindly to the 2 bites to the apple approach. In several dog-and-pony shows on PERM across the country, DOL personnel have apparently dodged most questions directed to them by an anxious regulated community eager to receive any scrap of an answer. However, the one question that DOL has apparently answered readily is the 2 bites question - and that answer has been a loud and unequivocal "No" - so say reports coming in to us.

Well, we have news for DOL. DOL is likely wrong on this one, as were we when we first looked at this issue. The brilliant Joel Stewart (author of the forthcoming "Labor Certification by Joel Stewart - THE PERM BOOK") has referred to the language we quoted from 20 CFR 656.17(d)(4) - and has drawn our attention to the fact that "identical" therein means "same", not "identical". This is important, and points to a way to definitely answer this issue. As defined by the rule, "identical" is NOT identical, merely "same". And DOL is bound by general APA practice on how "same" will be interpreted when defining "identical". In other words, DOL may have no choice under the law of the land but to permit 2 bites to the apple. There is, of course, more to it than that - this is not a word game. Immigration Daily will shortly publish a scholarly and exhaustive analysis of this point by Gary Endelman who, through a very different route, comes to the same conclusion - that DOL will likely permit 2 bites to the apple.

What are the practice pointers here? Well, we have two:

To sum up, don't delay, file today! Also, don't delay, order today!

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