DOL Update on Multiple Labor Certifications Filings
Posted Dec 30, 2005
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The U.S. Department of Labor (DOL) updated its Frequently Asked Questions (FAQs) recently (late December 2005) with regard to the filing of multiple labor certifications for one individual, for a single job opportunity. As explained below, this update does not alter the rules with respect to having a labor certification filed under PERM as well as one for the same job under the pre-PERM system. Therefore, those beneficiaries of pre-PERM (regular LC or RIR) cases pending at Backlog Processing Centers (BPCs), as well as PERM cases, are not affected by this FAQ. The approach of filing pre-PERM and PERM cases has not been addressed in this latest DOL FAQ, so the earlier position of having them both continue seems acceptable for now. This update addresses those situations in which a particular employer has filed multiple PERM cases or multiple regular LC or RIR cases on behalf of the same person for the same job opportunity.
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Bona Fide Job Opportunity Required
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Under both the PERM regulations and the pre-PERM regulations, the labor certification is issued by the DOL for a specified "job opportunity." The DOL permits employers to file multiple labor certifications for the same individual for different, genuine job opportunities. The DOL has not permitted multiple labor certifications for the same job opportunity, however, as in order to file a labor certification, there must be a specific job opportunity open to available U.S. workers. Where there is only one job opportunity for U.S. workers, there can only be one labor certification under the particular procedure (PERM or Pre-PERM) used.
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Multiple PERM Filings by Employers
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The DOL has noticed that some employers have filed multiple, identical PERM labor certification applications. This may be due to simply inadvertently hitting SUBMIT more than once in the electronic-filing process. In other cases, employers have varied the cases slightly in an apparent effort to explore the nuances of PERM. This multiple submission of identical PERM filings for the same job opening for the same beneficiary is not permitted under the long-standing policy described above.
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Withdraw Extra PERM Cases before January 19, 2006
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Since employers currently have multiple PERM applications filed, the procedures are of a phased-in nature. If an employer has multiple cases filed for the same beneficiary and same job offer under PERM, all but the one the employer wants processed need to be withdrawn. This withdrawal must take place by January 19, 2006.
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PERM Filings before January 19, 2006 : DOL to Process Last Case Filed
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For cases filed before January 19, 2006, if the employer fails to withdraw the multiple filings, the DOL will assume that the employer wants the last-filed application to be adjudicated. The reason the DOL will process the latest-filed case is that, presumably, that version embodies the final and correct job duties of the position. Any earlier identical PERM cases for the same job opportunity will be denied. Therefore, it is important for those employers who may have filed more than one case for the same position and the same beneficiary to withdraw any unwanted cases before the January 19^th deadline, especially if the prior filing by the employer was correct and that filing will help the employee to obtain an earlier priority date.
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PERM Filings after January 19, 2006 : DOL to Process Earliest / First Case Filed
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If, after January 19, 2006, an employer continues to file multiple PERM cases for the same job opportunity, the DOL will process the first case and deny any subsequent cases. This denial can be avoided if the employer withdraws the first case by following DOL withdrawal procedures.
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DOL to Issue NOFs on Identical Multiple Regular LC / RIR Cases
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For those regular LC and RIR cases (pre-PERM) that are pending at the BPCs, the DOL will continue with their long-standing policy regarding multiple cases. That is, they will process those that have different job opportunities (i.e. different positions and/or different employers for the same beneficiary).
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They will not process or certify multiple labor certifications for the same beneficiary, employer, and job opportunity. If such cases are identified, the BPC will issue a Notice of Findings for all such applications. The employer will then have to identify which job opportunity is bona fide. Employers with such multiple filings may notify the BPC, advise as to which case they wish to have processed, and withdraw all others.
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Pre-PERM and PERM Filings Issue Not Clear
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As indicated above, this FAQ does not address the increasingly common situation of an employer that has filed a labor certification under the pre-PERM system and has also re-filed essentially the same case under PERM. This issue is being considered, with input from stakeholders.
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Conclusion
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At the Murthy Law Firm, it is our observation that most of these filings are motivated simply by the length of time that the pre-PERM cases are taking at the BPCs. Added to the uncertainty as to likely processing times at the BPCs, it seems unreasonable to expect that individuals will continue to wait patiently, year after year. PERM cases bear more recent priority dates, but are likely to be approved before most cases pending at the BPCs. In proposing solutions to its workload problems, the DOL will surely consider preserving the earlier priority date of a case already pending at the BPC, for a later-filed PERM case for the same beneficiary.