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Should we refile under PERM for a pending labor certification application?
PERM permits employers to “refile” pending cases under the new PERM regulations. Refiling will preserve the original filing date and will be processed faster than many cases in the Backlog Elimination Centers. However, the DOL requires that the two applications be “identical.” If the DOL determines that the 2 applications are not identical, the pending labor certification application will be withdrawn without preserving the original filing date. The DOL expects to clarify the definition of “identical” later in 2005.
Where an employee is relying on the original filing date to establish “7th year H” eligibility, it may be inadvisable to refile. In addition, if the labor certification application was filed for a job requiring only a bachelor’s degree, the EB-3 immigrant visa category backlog is another reason to avoid refiling. Currently, individuals in the EB-3 category (bachelor’s degree holders, skilled and unskilled workers) may not file immediately for their adjustments or immigrant visa applications (the final steps toward permanent residence), even after their labor certifications are approved. They must wait until visa numbers become available for their original filing date, also known as the “priority date.” Those with later priority dates cannot yet file for permanent residence because of backlogs in the EB-3 immigrant visa category.
Can we file PERM and also keep the pending labor certification application?
The DOL has declined on several occasions to answer whether this is permissible. PERM regulations do not prohibit having two filings pending simultaneously. However, the DOL’s main priority is efficiency. Accordingly, DOL has discouraged dual pending filings.