On August 11, 2005, the U.S. Department of Labor (DOL) issued its fifth set of PERM Frequently Asked Questions (FAQ).   This latest FAQ memo addresses an issue of particular concern for many employers and employees, relating to multiple filings of labor certifications by the same employer for the same employee.

The FAQ announces a new DOL policy of issuing only one approved labor certification for each named beneficiary.  If implemented, this would be a drastic change from decades of DOL policy that permitted employers to file more than one application for the same worker, provided that the applications were for different jobs at the same employer.  Also, it has been common for more than one employer to sponsor the same alien, as a labor certification is considered to be for a future offer of permanent employment.  It is unclear from the FAQ whether applications by different employers for the same alien would be similarly limited.

The FAQ states that "[DOL does] not intend to issue more than one permanent labor certification for the same alien regardless of the number of filed applications, and whether for the same or different job opportunities."  Specifically, the FAQ specify that "[u]nder PERM, an employer may not have more than one labor certification application actively in process for the same alien at any given time."  Once DOL certifies a PERM labor certification, the agency will issue a Notice of Finding "for any application(s) by the employer for the same alien filed under the prior regulation (in effect through March 27, 2005) found pending in either of the Backlog Elimination Centers (BECs)."  Similarly, once a labor certification has been certified in a BEC, any pending labor certification application in either of the PERM processing centers filed by the employer for the same alien will be denied.  If DOL determines that multiple labor certification applications for the same alien are approved both under PERM and at the BEC, DOL will revoke the PERM approval.

With the commencement of the PERM labor certification process in March 2005, it appeared advantageous in certain situations to file a second labor certification under PERM while leaving in place an earlier labor certification filed under the previous process.  While employers have the option to "convert" pending labor certifications to the new PERM process, many employers were unable to file "identical" cases and/or unwilling to risk losing an older priority date.  They instead filed PERM applications to be processed in parallel with an earlier case filed under the previous labor certification process.  The new policy limiting multiple labor certification applications appears to be addressed directly to these types of cases.  The DOL had anticipated most employers choosing to convert backlogged cases to PERM, rather than filing a second case while leaving the original application in the backlog queue.  Jackson & Hertogs believes that DOL's new policy appears to be based in part on resource concerns, as the FAQ claim that "the filing of multiple applications for the same alien runs counter to the concept of a streamlined process."

While efficient use of government resources is laudable, it is not a legal basis to alter years of policy and effectively amend regulations without going through the requisite public notice and opportunity to comment on regulatory change.  Jackson & Hertogs has already communicated our concerns about this new DOL policy expressed in the FAQ to the American Immigration Lawyers Association (AILA).  AILA has indicated that it will challenge this DOL policy.  Jackson & Hertogs will continue to monitor developments and will update our clients as more information becomes available.  At this time, we would urge caution in filing PERM applications to be processed in parallel to a labor certification filed under the previous regulations unless the PERM filing is being done as an "identical filing".

The PERM regulations allow an employer to file a PERM application that is "identical" to an application previously filed under either RIR or non-RIR and capture the priority date. However, in requiring that the applications must be identical, the DOL stated that not only can there be no changes in the job description or requirements, but also there can be no changes in the name of the company, corporate address, work site address or any other area of the forms. Since the strategies for non-RIR, RIR and PERM are drastically different, many employers were unable to take advantage of filing "identical" applications. Furthermore, the DOL indicated that any case that was filed as an "identical" case would require side-by-side comparison with the originally filed application to determine that the two applications are in fact identical. The DOL was not forthcoming in what its processing time would be for such an analysis.

The latest FAQ can be found at: http://www.workforcesecurity.doleta.gov/foreign/pdf/perm_faqs_8-8-05.pdf.  All of DOL's FAQ on PERM, Backlog Elimination, and Prevailing Wages may be found online at:  http://www.workforcesecurity.doleta.gov/foreign/faqs.asp.

© 1999-2012, Jackson & Hertogs - All rights reserved