DFLC Frequently Asked Questions and Answers
12. Under PERM, is it permissible for an employer to have more than one labor
certification application actively in process for the same alien for the same job opportunity at any given time?
What should an employer do if it has already filed multiple applications for the same alien for the same job
- Under the old and new permanent labor certification regulations, DOL certifies that there are not available U.S.
workers for a particular "job opportunity." See, e.g., 20 CFR 656.10(c) (new PERM
regulation) and 656.20(c) (prior regulation). DOL's longstanding policy has been that an employer is not prohibited
from filing applications for the same alien involving different, legitimate job openings to which U.S. workers may
be referred. See, e.g., Field Memorandum 48-94 (May 16, 1994) (Policy Guidance on Alien
Labor Certification Issues at § 6). However, DOL has not processed or certified multiple labor certifications
for the same alien and same job opportunity on grounds that the additional applications cannot represent a bona fide
different job opportunity available to U.S. workers.
In the months since the PERM regulation's streamlined procedures for filing and processing of permanent labor
certification applications took effect on March 28, 2005, some employers have filed multiple electronic applications
for the same alien and same job opportunity. In some cases, the multiple applications are identical in all respects
and may have been the result of inadvertently repeating the "submit" function. In other cases, the applications
differ in minor respects, such as answering questions regarding job requirements differently or varying in
descriptions of skill requirements. In some cases, these minor differences may have been intended to prematurely
respond to electronic denials (that is, in advance of receiving the written denial letter) or to test the system's
responsiveness and auditing criteria.
DOL intends to apply its longstanding policy regarding multiple applications to multiple applications filed under
the new PERM regulation. Therefore, an employer may not have more than one Form 9089, Application for Permanent
Employment Certification, in process under the PERM regulation for the same alien beneficiary for the same job
opportunity at any given time.
Recognizing that multiple filings are already in the PERM queue for the same employer, alien and job opportunity, we
have developed the following procedures to transition in implementation of this policy to PERM:
- If an employer currently has multiple applications in process under PERM for the same alien and job opportunity,
the employer must withdraw, by January 19, 2006, all applications other than the one it
wants processed. (For withdrawal information, see the separate FAQ on procedures for withdrawing an application.)
- As of January 19, 2006, if multiple applications from an employer for the same alien
and same job opportunity are still pending under PERM, we will assume that the employer wishes the
last-filed application to be processed (since this presumably includes any corrections
or clarifications from earlier filings) and the other pending PERM applications for the same alien/job opportunity
will be denied.
- After January 19, 2006, if an application for a particular employer/alien/job opportunity is pending under
PERM and a second application is filed under PERM for the same employer/alien/job opportunity, we will continue to
process the first-filed PERM application and deny subsequent PERM filings except where the employer follows the
procedures outlined here. If the employer wishes to file a new or changed application under PERM for that same
alien and job opportunity, the employer should not file the new PERM application until the employer formally
withdraws the PERM application currently in process or the employer has received the Final Determination form
notifying the employer that the previous application is denied. NOTE: An employer may not
file a new application for an alien while a request for review is pending with the Board of Alien Labor
Certification Appeals (BALCA) for that same alien, employer, and job opportunity. See
20 CFR 656.24(e)(6).
DOL will continue to apply its longstanding policy regarding multiple applications under Field Memorandum 48-94 where
multiple cases have been filed and are being processed under the old regulation at Backlog Elimination Centers. DOL
will continue to process and certify multiple permanent labor certification applications filed under the prior
regulation for the same alien if the employer is proposing to employ the alien in multiple different bona fide job
openings to which U.S. workers can be referred. DOL will not process or certify multiple labor certifications filed
under the prior regulation for the same alien, employer, and job opportunity on grounds that the additional applications
cannot represent a bona fide different job opportunity available to U.S. workers.
If a BEC identifies multiple pending applications for the same employer, job opportunity, and alien, the BEC will
issue a Notice of Findings for all related applications, and provide the employer the opportunity to identify which
application contains the bona fide job opportunity. Should an employer currently have multiple applications pending
at a BEC for the same employer, job opportunity, and alien, the employer may take the initiative and notify the BEC
as to which application it wishes to have processed and withdraw all other applications.
This FAQ does not address the situation in which an application for the same employer, alien and job opportunity is
pending under both the prior and new PERM regulation. DOL is considering stakeholder input on this situation, which
in some cases may have implications for priority dates.
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