PERM denied due to a previousely certified application

H

Hexamon

Registered Users (C)
Hi,

I did a little research trying to find a simiilar case and could not quite find an answer, so I figured, I'd open a new thread.

I have an approved PERM application in EB3 category. Approved in November 2005. Few days ago my attorney filed a new application in EB2 category (BS + 5 experiense) for the same company, but a different job opportunity (Sr. SE vs. SE). 2 days ago we got an auto-denial. The reason given was that there is another applicaiton pending for the same job opportunity. According to may attorney, DOL does not allow two pending applications at the same time (quite a reasonable requirement), but there is a glitch in there software, which causes them to deny applicants with a previousely approved LC (not currently pending).

Q: Is this a common problem?
Q: Wwhat would be the best course of action?
 
I have heard that one cannot file two PERM's though it is very surprising that they say "Pending" application. Since your's was approved already it is technically not "pending".

On those lines. Can you withdraw the already approve application and then apply for EB-2 ??
 
Hi,

I guess this is a glitch in the PERM system. I have PERM EB3 certified in Dec05. The employer filed another PERM EB2 in April06 but no auto-denial has been received yet. I would recommend you to try and file EB2 again or contact DOL on the issue.
N.B. My case is filed with Chicago processing center.

Hexamon said:
Hi,

I did a little research trying to find a simiilar case and could not quite find an answer, so I figured, I'd open a new thread.

I have an approved PERM application in EB3 category. Approved in November 2005. Few days ago my attorney filed a new application in EB2 category (BS + 5 experiense) for the same company, but a different job opportunity (Sr. SE vs. SE). 2 days ago we got an auto-denial. The reason given was that there is another applicaiton pending for the same job opportunity. According to may attorney, DOL does not allow two pending applications at the same time (quite a reasonable requirement), but there is a glitch in there software, which causes them to deny applicants with a previousely approved LC (not currently pending).

Q: Is this a common problem?
Q: Wwhat would be the best course of action?
Click to expand...
 
two PERM applications

Along the same lines as the question asked by the OP, I'm in more or less the same situation that my company is filing PERM on EB3 but i'm an MS with 5 years experience so i was thinking that once my PERM on EB3 gets approved I can go ahead and switch firms to apply for PERM in EB2 category.
1. I would appreciate if someone could elaborate whether there are any repercussions to doing this?
2. Also, how long do i have to wait after filing 1st to file the 2nd PERM?
3. Can i file 2nd PERM while my I140 is in process for 1st PERM?

regards,
 
1. afaik DoL doesn't prohibit 2 concurrent LCs for one alien as soon as they have been filed by different companies.
2. you don't have to wait.
3. yes.

sportic said:
Along the same lines as the question asked by the OP, I'm in more or less the same situation that my company is filing PERM on EB3 but i'm an MS with 5 years experience so i was thinking that once my PERM on EB3 gets approved I can go ahead and switch firms to apply for PERM in EB2 category.
1. I would appreciate if someone could elaborate whether there are any repercussions to doing this?
2. Also, how long do i have to wait after filing 1st to file the 2nd PERM?
3. Can i file 2nd PERM while my I140 is in process for 1st PERM?

regards,
Click to expand...
 
Here's an abstract from: "Summary of April 17, 2006 Biweekly Stakeholders Call with DOL ETA"

"
...
A recent FAQ has indicated that two PENDING Perm cases for the same alien and same job by the same employer will not be allowed. If an application is filed while another case is pending, the application will receive an auto-denial. However, new applications are also being rejected when there is no pending case but there is a previously certified application. In many cases, these are for different job offers or it may be done to correct errors on the certified application. While we understand your concerns related to multiple applications, there must be a way to accommodate changes in positions to meet business needs and to permit the parties to correct errors that would stop them from moving forward with an Immigrant Visa application. Is this a software problem or was it otherwise intended? DOL stated they are fixing software so that the filing of a new application will not result in a denial merely because a previous application was certified. However, once an application is certified and you discover an error, filing a new application may not be the only way to correcting the error. DOL suggests the possibility of attaching a statement to a certification indicating corrections that need to be made and that we seek advice from CIS as to how we might indicate those corrections in the I-140 context. Filing a new application on a case that has been certified may only create confusion. Perhaps we could attach letter or note to the Labor Certification explaining that there is a non-substantive error that needs to be corrected. AILA commented that if the problem were dates of experience that are a bit off, that approach might be fine. However, where there has been a significant promotion, one could not say the jobs were the same. Therefore, it is important that there are no blanket rejections of new applications. Another example would be an application that is filed requiring 5 years of experience due to a typo but the foreign national has only three years of experience. If you cannot refile and get new certification with the correct experience requirement, you have a problem as CIS will not approve an I-140 petition even with explanation. DOL agrees to think about a remedy, will consult with CIS. AILA was asked to send some examples of scenarios for DOL to consider in connection with errors.
...
"
 
Hexamon,

Any latest update on this?

Pl. advise.

Thanks..


Hexamon said:
Here's an abstract from: "Summary of April 17, 2006 Biweekly Stakeholders Call with DOL ETA"

"
...
A recent FAQ has indicated that two PENDING Perm cases for the same alien and same job by the same employer will not be allowed. If an application is filed while another case is pending, the application will receive an auto-denial. However, new applications are also being rejected when there is no pending case but there is a previously certified application. In many cases, these are for different job offers or it may be done to correct errors on the certified application. While we understand your concerns related to multiple applications, there must be a way to accommodate changes in positions to meet business needs and to permit the parties to correct errors that would stop them from moving forward with an Immigrant Visa application. Is this a software problem or was it otherwise intended? DOL stated they are fixing software so that the filing of a new application will not result in a denial merely because a previous application was certified. However, once an application is certified and you discover an error, filing a new application may not be the only way to correcting the error. DOL suggests the possibility of attaching a statement to a certification indicating corrections that need to be made and that we seek advice from CIS as to how we might indicate those corrections in the I-140 context. Filing a new application on a case that has been certified may only create confusion. Perhaps we could attach letter or note to the Labor Certification explaining that there is a non-substantive error that needs to be corrected. AILA commented that if the problem were dates of experience that are a bit off, that approach might be fine. However, where there has been a significant promotion, one could not say the jobs were the same. Therefore, it is important that there are no blanket rejections of new applications. Another example would be an application that is filed requiring 5 years of experience due to a typo but the foreign national has only three years of experience. If you cannot refile and get new certification with the correct experience requirement, you have a problem as CIS will not approve an I-140 petition even with explanation. DOL agrees to think about a remedy, will consult with CIS. AILA was asked to send some examples of scenarios for DOL to consider in connection with errors.
...
"
Click to expand...
 
No, no progress. I'm considering a possibility of withdrawing the first (approved) application and refiling the other one. Miserable! :(
 
Gurus,

I got my EB-3, I-140 Approved by using non-perm process around sept 2005.

I m changing my employer and have few doubts.

1) Is there any complications in filling EB2 Perm (MS + 3 Years exp)?
2) after H1 transfered, in what way my current employer can track my h1 activities?

Thanks,
 
A little update: we waited for the DOL/AILA conference for couple weeks. Then my attorney (and few others) asked DOL representatives regarding the denial of cases with no PENDING second application with a reason "another case PENDING". DOL representatives assured everyone this was caused by a software glitch and was not intentional. They stated the problem has been resolved and asked us to refile the case. Last Friday my case was refiled. Two days later the same story: automated system at Chicago processing center denied the application. Please, note: it is a PERM application in EB2 and I already have an APPROVED application in EB3 from October 2005 for the same employer for the same work site but a DIFFERENT job position. My attorney has contacted the director of the Chicago processing center. The latter forwarded the case to the certifying officer and assured us the problem will be resolved in near future. That's where we stand.

Anyone who has an approved EB3 application and refiled in EB2, please, respond. It would be beneficial to find out if this is an isolated incident (some weird glitch in the PERM database) or a massive threat.
 
Last edited by a moderator:
My EB2 case is still "In Process". Looks like your situation is sort of unique.

Hexamon said:
Anyone who has an approved EB3 application and refiled in EB2, please, resond. It would be beneficial to find out if this is an isolated incident (some weird glitch in the PERM database) or a massive threat.
Click to expand...
 
-me- said:
My EB2 case is still "In Process". Looks like your situation is sort of unique.
Click to expand...

Q: Is it the same company?
Q: Is it being processed by Chicago processing center?
 
I had the same problem

Hexamon, i had the same problem, My EB3 was certified and I filed EB2 which was denied due to "pending" application. It was a DIFFERENT JOB oppertuinity. You will come to know my case by searching my domian name in this portal. it will help. My case is at BALCA right now
I will PM you to talk at length
 
Thanks Warsaw_Berlin. I did find your posts and read them carefully. We're in very similar boats. I know several people you got their EB2 approved having an approved EB3 with the same employer. This does not seem to be a general problem (or there would be a huge uproar on this forum alone). My guess is that we're the few unlucky ones whose status somehow never got cleared in the DOL database form 'PENDING' to 'APPROVED'. One way to test this "theory" is to inquire with DOL about the current status of the old EB3 case.

At any rate, I don't see any other avenus other than applying through BALCA. I'll send you a PM for more details.

thanks,
 
Approved RIR EB-3 and applying EB-2 perm

Dear everyone,

I recently received my eb-3 approval from the backlog center. I am planning to apply for eb-2 since I have an M.S. with the same company but with an advanced different position. I was reading all these email in the forum and thinging whether my eb-2 perm will be denied like most of u since u already have an approved case or a pending case.

Now is the DOL rejecting the eb-2 cases if someone had an approved case with RIR? or is it just some isolated incidents?

Folks, do u advice me to go ahead with my eb-2 with the same company and different position?

In order to qualify for EB-2, is the minimum requirements M.S. with 0 years experience or B.S. with 5 years of progressive experience?
 
Any one there to respond

Has any got certified two labor under PERM (EB3 & EB-2) for the same person from the same company for different job opportunity?

Please share you experience

Thanks




Hexamon said:
Thanks Warsaw_Berlin. I did find your posts and read them carefully. We're in very similar boats. I know several people you got their EB2 approved having an approved EB3 with the same employer. This does not seem to be a general problem (or there would be a huge uproar on this forum alone). My guess is that we're the few unlucky ones whose status somehow never got cleared in the DOL database form 'PENDING' to 'APPROVED'. One way to test this "theory" is to inquire with DOL about the current status of the old EB3 case.

At any rate, I don't see any other avenus other than applying through BALCA. I'll send you a PM for more details.

thanks,
Click to expand...
 
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