English Article 46

All labor certification applications filed before March 28, 2005 continued to be processed under the "old" regulations. An employer may file a PERM application where there is an existing labor certification application and the PERM application will keep the filing date of the original application, IF the labor certification is for the "identical" position, the employer specifically requests the re-filing benefit, and there has not yet been a state job order entered on the original labor certification. A request for re-filing benefits is an automatic withdrawal of the "old" labor certification. We believe that A PERM application which does not request re-filing benefits does not result in the withdrawal of the old application - even if the positions are identical.

If a new PERM case is filed, and you decide to request the original filing date, the main benefit is that the applicant will obtain an earlier priority date if the application is approved. An earlier priority date is important if there is a retrogression in the visa category requested. It could be important if an H-1b 7^th year extension is requested.

Asking to keep the filing date of the pending application results in that application being withdrawn, but the original filing date being applicable to the PERM application if it is approved.

If you have to obtain a 7^th year H-1b, it is a dangerous proposition to request withdrawing the original application because if the PERM application isn’t identical, the priority date on the original application will be lost and you will not be able to extend your H-1b.

Moreover, when the original filing date is requested, the DOL will pull the original file and compare it to the PERM application. This process will create delays.

TWO BITES AT THE APPLE THEORY

Will someone be able to request a PERM application when an RIR or traditional labor certification is pending for the same position and the same employer?

As of this writing, the labor department has not made a specific announcement one way or the other. There are some facts though to consider.

1. Nothing in the regulations prevent a simultaneous PERM and traditional/RIR application for the same position.

2. If you file a PERM position and it is not "identical" to the RIR/traditional application, it seems clear that you can file two applications since you can argue that you could not have picked up the old priority date.

3. Even if the DOL says "nyet" to this theory, it is difficult to imagine how they would know both are pending since the PERM and RIR/Traditional systems don't "talk to each other". However, this is a riskier proposition.

4. We have heard, from the "grapevine" that Harry Sheinfeld, the DOL's counsel, has said that there is no legal rational under the regulations to prohibit the two bites at the apple theory.

CAVEAT: Nothing above prevents the DOL from eventually prohibiting the practice of filing simultaneous applications, but before we have additional guidance on this issue, we are taking the position that it will be possible to have a traditional labor certification, and a PERM application processed simultaneously for the same employee, for the same position.

The advantage of an earlier priority date may be less significant than the increase in speed of adjudication which comes with not requesting the original filing date. Visa retrogression and processing speed may not be what we expect, in which case it may turn out to be more advantageous to have obtained the earlier priority date.

We are scheduling seminars on PERM and we ask you to contact Mr. Yoshikubo of our office at Yoshikubo@sindelllaw.com if you are interested in attending.