LC Under Old PERM System
Posted on June 12, 2006 by Warren Wen | Category: Immigration
Labor Certification Filed Prior to the PERM System
Mr. Park asked:
My employer has filed an application for labor certification for me under the old system in March 2004. My attorney says my application is still pending, while my friends are telling me their applications filed under the new PERM system this year have been already approved. Should my employer withdraw my old application and re-file it under the new system?
Answer:
The Department of Labor does not provide counsel as to a question of whether the employer should withdraw the earlier application and re-file the application under the PERM. However, an employer may, at any time, withdraw an application filed under the regulation in effect prior to March 28, 2005, re-file under PERM, and maintain the original filing date, if the new application complies with the new regulation, the application is identical to the original application, and a job order has not been placed by the SWA for the original application according to the pertinent PERM regulation. In case of re-filing, the employers are reminded that re-filed labor certification applications must conform to the provisions of the PERM regulation.
In Mr. Park’s case, if a job order has not been placed pursuant to the previous permanent labor certification regulation, his employer may re-file the application by withdrawing the original application and submitting, within 210 days of withdrawing, an application for an identical job opportunity which complies with all of the filing and recruiting requirements of the new PERM regulation. To the question, whether the employer desires to use the filing date from a previously submitted application on the new application for permanent employment certification, marking “yes” could be deemed as an intention to withdraw the original application.
For a job opportunity to be identical, the PERM regulation requires that the employer and the company address are the same. The alien name, job title, job location, job requirements and job description should be identical in both original and re-filed applications. It is quite possible that the prevailing wage in the new application, which must be filed in accordance with the PERM regulation and which must evidence a current prevailing wage, is different from the prevailing wage applied in the original application.
If a job order for an application has been placed by the State Workforce Agency (SWA) as part of the traditional recruitment process under the regulations in effect to March 28, 2005, the employer is prohibited from re-filing the application and retaining the original filing date. Thus, Mr. Park’s employer must understand that he cannot re-file the PERM application online using the original filing date, if he has placed a job order placed by the SWA as part of the traditional recruitment process.
If Mr. Park’s employer is not allowed to withdraw and re-file the application using the original filing date, he can consider two alternative options. The first is to withdraw the original application and re-file according to the new PERM regulation, but give up the original filing date. The second is to continue with his original application and wait for the approval. It may take longer time to get the Labor Certification certified under the traditional system than using the new PERM system online. However, it may be more advantageous to Mr. Park in a long run, since the priority date for Mr. Park’s immigration process will be much earlier using the original filing date. In case the employer decided to give up the original filing date and file a completely new application according to the new PERM regulation, the overall immigration process for Mr. Park could be delayed since the priority date for Mr. Park would be pushed back about 2-3 years, although his labor certification may be approved faster than staying with the original application process.
This article is only for your reference. Please do not apply mechanically to any exact cases. You are welcome to consult our attorneys at Liu & Associates, P.C. For contact information, please click here.