All labor certification applications filed before March 28, 2005 can continue to be processed under the "old" regulations.   The Department of Labor is predicting that it will take two years to clear the backlog of "old" labor certification applications.  

An employer may file a PERM application where there is an existing labor certification application and the PERM application will keep the filing date of the original application, IF the labor certification is for the "identical" position, the employer specifically requests the re-filing benefit, and there has not yet been a state job order entered on the original labor certification.

A request for re-filing benefits is an automatic withdrawal of the "old" labor certification.

A PERM application which does not request re-filing benefits does not result in the withdrawal of the old application - even if the positions are identical. 

Three choices regarding pending labor certifications

Each choice has consequences - favorable and unfavorable.

Pluses & Minuses - considerations

Weighing the benefits - assessing the costs - making a decision

How important is speed?

If your employee has a teenaged child, speed can be critical.  An alien obtaining immigrant status can bring along children, only if they are under 21 and unmarried.  Under some circumstances, a child's age can be effectively "frozen" when a preference petition is filed with the CIS - and that can't happen until the labor certification is approved.  

We recommend an additional PERM application for any employee with a child over 18 and under 21.

If your employee is running out of a status which authorizes employment, speed may be essential.  For instance, an employee approaching the end of their permitted stay in L-1a or L-1b status may be able to remain in the US once a labor certification is approved, and a preference petition and application for adjustment of status is filed.     

If maintaining your employees current status is more expensive than filing a new PERM application, speed may reduce your total costs.  Filing fees for an H-1b & H4 extension for a family now total $1,880 - before attorneys fees.  

If visa availability retrogresses in the future, speed will be important in that your employee may be eligible to file an application for adjustment of status (or for an immigrant visa) if their labor certification is approved now - but may have to wait many years if the labor certification is not approved until after visa numbers retrogress.

Speed may be important to your employee, if they are worried about the stability of their job, or the company.

And of course, if the labor certification is going to be approved, it is better to get that result sooner, than later.

Should the pending application be withdrawn?

Asking for the filing date of the pending application results in that application being withdrawn, but the original filing date being applicable to the PERM application if it is approved.

If there is a "6 year H issue" - we recommend at this time NOT requesting the original filing date.  The pending original labor certification will continue to give benefits for additional H extensions, so long as it is not denied.  If the PERM application is denied, or if the request to keep the original filing date is denied (for instance, because the DOL deems the applications not to be "identical") then the possibility of filing H extensions beyond the 6th year can be lost.

Unless the priority date of the old application is an issue, we recommend NOT requesting the original filing date.  When the original filing date is requested, the DOL will physically examine the original application.  We have been told that this will delay the PERM application - and we have no idea how long it will take the DOL to locate an individual labor certification which has been sent to a backlog reduction center.  Delays may be substantial.  Additionally, whereas old labor certifications can go back and forth between the DOL and the employer for amendment, additional information, additional recruitment, PERM applications are simply approved or denied.  Asking for the original filing date dismisses the old application.

CAVEAT:  We make this recommendation based on our analysis of the information available today.  Based on that information, we believe that
1.   It will be possible to have a traditional labor certification, and a PERM application  processed simultaneously for the same employee, for the same position.  The DOL may decide otherwise.
2.   The advantage of an earlier priority date may be less significant than the increase in speed of adjudication which comes with not requesting the original filing date.  Visa retrogression and processing speed may not be what we expect, in which case it may turn out to be more advantageous to have obtained the earlier priority date.  

Who needs their old filing date?  If the worker is from India, China, or the Philippines and the labor certification did not require an advanced degree,  the priority date may be important.    If the worker is not from one of those countries, and the labor certification requires an advanced degree, the priority date does not now appear to be significant.    We expect that the world wide third preference category may back up later this year - however, at this time, the tradeoff between obtaining a labor certification quickly, and having an early priority date seems to tilt towards speed.

Our recommendation at this time is that the old filing date should not be requested unless the labor certification requires less than a masters degree and the beneficiary is from India, China, or the Philippines.