December 20, 2005 - The Department of Labor today posted a new FAQ that clarified of its policy on multiple applications in the PERM labor certification program, but left open the question of whether filing a PERM application will jeopardize a pending RIR or Traditional labor certification application.

The essence of DOL's policy is that only one PERM application can be filed and pending for the same employee for the same job opportunity at any given time. DOL also states that only one RIR or Traditional application for the same employee for the same job opportunity can be pending at the same time for labor certification applications that were filed under the rules in effect before PERM and remain pending at a DOL Backlog Elimination Center.

DOL did not announce any policy regarding the crucial issue of whether or under what conditions it would permit employers to have an application filed under PERM for the same employee and same job opportunity for which an application is pending at a Backlog Elimination Center, stating instead that it would engage in further discussions on this issue:

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 [RIR/Traditional] and new PERM regulation. DOL is considering stakeholder input on this situation, which in some cases may have implications for priority dates.

The new FAQ included instructions on procedures for withdrawing duplicate or multiple PERM applications, and announced a January 19, 2006 deadline for completing all withdrawals. Beginning January 19, 2006: (1) if multiple applications from an employer for the same alien and same job opportunity are still pending under PERM, DOL will assume that the employer wishes the last-filed application to be processed and the other pending PERM applications for the same alien/job opportunity will be denied; and (2) 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, DOL will continue to process the first-filed PERM application and deny subsequent PERM filings except where the employer follows the procedures outlined in the FAQ.

The complete FAQ is available online at http://atlas.doleta.gov/foreign/faqsanswers.asp#filing12

Additional background information may be found at http://web1.usabal.com/news/2005/05Aug23.html

BAL Comment:

In this FAQ, DOL correctly recognized that there can be no prohibition on filing labor certification applications for the same employee for different job opportunities (e.g. different worksite, different occupation), retreating from the draconian policy it attempted in early August. Although there is no explicit prohibition in the statute or the regulations, DOL has for a number of years expressed its position prohibiting more than one pending labor certification application for the same employee and the same "job opportunity." DOL's imposition of this view with regard to PERM applications is not surprising, and given the relatively short processing time for PERM applications, its adverse impact may not be that great, regardless of whether DOL has strong legal authority for its position.

The more controversial issue, which remains undecided, is whether an employer can file a PERM application for an employee who has a pending RIR or Traditional application pending for the same worksite and the same occupation. Many RIR and Traditional applications have been pending for three or more years (due to DOL inaction), and employers and employees alike were eager to take advantage of the new PERM program but were reluctant or unable to abandon their pending RIR or Traditional cases, which had a much earlier priority date and could be necessary for H-1B extensions (beyond the sixth year). In refraining from immediately applying its duplicate filing prohibition to PERM cases with pending RIR/Traditional applications (for the same employee/job opportunity) and in recognizing the priority date implications, DOL has shown that it realizes that it is treading on sensitive ground. Attorneys and interested companies are continuing their advocacy to confirm that filing a PERM application will not jeopardize a pending RIR/Traditional case for the same employee, but the outcome remains uncertain.