Refiling When The PERM Employment Situation Changes

Listed below are answers from an immigration lawyer regarding your questions about PERM and work permits. Be sure that you are in compliance with the effective date, March 28, 2005, for the new PERM regulations.

Question: Will the job opportunity on the original and refiled application not be considered identical if, for instance, the prevailing wage has changed?

Answer: No, having a different prevailing wage on the refiled application from that on the original will not impact whether or not the job opportunity is identical. For a job opportunity to be identical, the regulation requires that the employer (including address), alien, job title, job location, job requirements, and job description be identical in both the original and refiled applications. It is quite possible that the prevailing wage in the new application, which must be filed in accordance with the PERM regulations and which must evidence a current prevailing wage, will not be the same as the prevailing wage in the original application.

Question: Should an employer withdraw an earlier application and refile under PERM?

Answer: The Department of Labor does not provide counsel as to questions of this nature. However, employers are reminded refiled labor certification applications must conform to the provisions of the PERM regulation.

Note: If a job order has not been placed pursuant to the regulations in effect prior to March 28, 2005, an employer may refile 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.

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