2.1 Will employers still be able to submit cases via RIR and standard processing once PERM takes effect?

No, not once the regulation takes effect on March 28, 2005. Until the final rule becomes effective, labor certification cases may continue to be filed under the current two-track system. Once the rule takes effect, all new cases will need to be filed under the new attestation and audit process. Pending cases may remain in place in the prior processing systems or may be re-filed as PERM cases, as discussed below.

2.2 Will all pending cases have to be re-filed as PERM cases?

No. Cases already filed under traditional or RIR processing will stay in those queues. There are no plans to force conversion to the PERM system.

2.3 Can an existing case be converted to a PERM case?

Yes. While DOL prefers not to use the term “conversion” for reasons discussed below, a welcome provision in the rule will allow employers to re-file pending labor certification applications under the PERM system without losing the established priority date, which sets the foreign national’s place in line for an immigrant visa. Given that visa numbers have already retrogressed for some countries and that further retrogression is possible in the future, preservation of priority dates may be crucial in many circumstances. Labor certification cases that are pending at the time the PERM rule takes effect may be re-filed as PERM cases, while retaining the original priority date for visa backlog purposes, as long as (1) no job order has been placed with the State Workforce Agency (SWA); (2) all PERM-related prevailing wage, advertising and recruitment requirements have been met; and (3) the job opportunity is deemed to be “identical” to the job description described in the original application. “Identical” is defined in the regulation as a job opportunity where the employer, foreign national, job title, job location, job requirements, and job description are the same as those stated in the original application.

Withdrawal of a case is required upon or prior to re-filing, and employers will be permitted to re-file up to 210 days after withdrawing a case. The DOL will regard the re-filing of a case under PERM with a request to retain the original priority date as a request to withdraw the previously filed case. There may be some risks, however. If the DOL determines that a case is not identical, the new case will be accepted and assigned a new priority date, the old case will be considered withdrawn and the old priority date will be lost. Cases that are withdrawn and re-filed as PERM cases after the state job order is placed will be assigned a new priority date.

Again, the recruitment and prevailing wage information utilized in a re-filed case must comport with the PERM rule. The final rule states that recruitment may be no more than 180 days old, which might exclude much of the recruitment completed for already-filed cases. Therefore, the re-filing provision does not provide for simple conversion of already-filed applications to PERM.

Note that the re-filing provision may have implications for foreign nationals who have commenced the employment-based immigration process, and are also in H-1B nonimmigrant status and are nearing the six-year limit on H-1B stays. These individuals are eligible for extensions of H-1B status past the six-year limitation if, among other scenarios, it can be demonstrated that a labor certification application on which the foreign national will rely for immigrant status has been pending for 365 days or more. It is unclear how a labor certification withdrawal and re-filing under PERM will affect this right; guidance from U.S. Citizenship and Immigration Services (USCIS) will be necessary to clarify this issue. We will continue to analyze this question and will issue further guidance as soon as possible.