Multiple PERM Filings for the Same Person? You May Want to Read This!
Every now and then I am asked the question, “Can an employer have more than one PERM labor certification application in process for the same beneficiary at the same time?” To which I answer, “It depends”.
DOL allows an employer to file multiple PERM applications for the same beneficiary so long as the filings involve different, legitimate job openings.
But, the DOL will not process or certify multiple labor certifications filed by the same employer for the same beneficiary and the same job opportunity. This means that an employer may not have more than one PERM application in process for the same beneficiary for the same job opportunity at any given time. Under PERM regulations, the DOL certifies that there are not available U.S. workers for a particular “job opportunity” by means of the recruitment process that the employer must undergo. In this scenario, the DOL reasons that the additional applications filed under the same position cannot represent a bona fide different job opportunity available to U.S. workers.
So, an employer can certainly file multiple PERM applications for the same individual where a bona fide different job opportunity exists, but should have an experienced attorney review the job details before proceeding. You wouldn’t want to file multiple applications only to get one of them yanked at a later time. Some indications that job opportunities are different are:
- The job details, including job title and job duties, may yield different SOC codes: (The Standard Occupational Classification (SOC) System is a U.S. government system of classifying occupations, which allows you to compare occupations across data sets). For instance, a Programmer Analyst and a Software Engineer would be grouped under different SOC codes, which helps the argument that the positions are indeed different.
- The job opportunities have different requirements: For instance, the positions could have different minimum education and/or experience requirements.
- The salary for the positions may differ: For instance, an employer could provide prevailing wage information to demonstrate the distinction in salary amount for each position.
A recent BALCA decision actually touched on this issue. In Allianz Global Investors of America, L.P., 2012-PER-01868 (BALCA September 16, 2016), the Board affirmed a denial of certification for filing a new PERM application while its original PERM application was pending Board review for the same person and the same occupation. According to DOL regulations, a new application in the same occupations for the same beneficiary cannot be filed while a request for review is pending with the Board.
The employer in this case filed the original PERM application for a Paralegal and Legal Assistant position. This application was denied and forwarded to the Board for review. A few months later, the employer submitted a new PERM application for the same beneficiary as a Senior Legal and Compliance Mutual Fund Specialist. The Certifying Officer (CO) denied certification on the new filing stating that the present application was for the same job opportunity and beneficiary as the original application under Board review. Further, the CO noted that the employer did not respond to an email asking which application the employer wanted to move forward with (It’s good to know Certifying Officers send these email notifications!).
The Board acknowledged that the employer detailed the differences between both positions, but ultimately stated that the employer failed to submit any supporting documentation of the claimed distinction. As the Board points out, the employer bears the burden of proof to establish eligibility for a labor certification, so mere assertions will not suffice.
It would have been very helpful for the employer to submit documentation as outlined above along with a copy of each PERM application to point to specific details of each position. After all, when do mere assertions ever help a case? As mentioned, it is always advised to discuss your specific situation with a qualified immigration attorney before proceeding with the PERM process.
Direct: 713-457-5703; Email: Krystal@rnlawgroup.com