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Immigration Daily December 30, 2004
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Simultaneous PERM And Old LC?

At the new 20 CFR 656.17(d)(1)(ii), the PERM rule pours cold water over attorneys who want to "upgrade" cases to PERM, since it throws into question the period of pendency of the labor certification application for 7th year H-1B purposes, by leaving the filing date to the discretion of DOL. This is particularly problematic, since for most backlogged RIR cases, the recruitment will be too stale to qualify for PERM "upgrading", and in view of how the backlog-reduction program is going, it may be a long, long time before these backlogged RIR cases are adjudicated. One way to get around this problem (in some cases) might be to file a new PERM application that is "non-identical" to the old pending case - the question is: is this a viable strategy?

To answer this question, one should take a close look at the new 20 CFR 656.17(d)(4) which defines a job opportunity as "identical" if "the employer, alien, job title, job location, job requirements, and job description are the same as those stated in the original application". Given that in the hypothetical scenario sketched out above, the employer, alien and job location will not change, and given that the job title has customarily been seen to be the employer's prerogative to state, but the DOL's prerogative to ignore, the answer to this question resolves to the issue of whether a change in job description and job requirements would qualify such an application as "non-identical" for purposes of a new PERM filing while still preserving the benefits of 7th year and beyond extensions through the old pending application. One might imagine, that given the passage of time spent waiting in the RIR backlog, a small change in job description and job requirements would be feasible for many applications.

Unfortunately, the answer clearly falls on how the DOL administratively defines the word "same" in the regulatory language defining "identical" quoted above. We believe that DOL will most likely define "same" to mean "substantially the same" and therefore most such new PERM applications will most likely result in a deemed withdrawal of old cases under the new 20 CFR 656.17(d)(1)(ii), with all that implies in terms of 7th year extensions, etc.

This illustrates the critical issues that attorneys face in the wake of PERM. ILW.COM will be following PERM very closely, and it is safe to say, more closely than anyone else, so all those interested in PERM developments should be sure to keep a close eye on this space. We encourage all those interested in preparing for PERM to read "The Lawyer's Guide To 212(a)(5)(A): Labor Certification From 1952 To PERM" by Gary Endelman. Readers may also want to check out our latest PERM seminar and THE PERM BOOK (both pages are updated regularly with new info as it arrives).

We welcome readers to share their opinion and ideas with us by writing to



ILW.COM is proud to present THE PERM BOOK - "Labor Certification by Joel Stewart". This book will include a lengthy and detailed section-by-section analysis of the entire PERM rule (including changes caused by the Consolidated Appropriations Act, 2005) by Joel Stewart. Books will be shipped out according to the principle first-ordered, first-shipped. For more info and to order pre-publication copies, see here.


Labor Department Releases Long-Awaited PERM Rules
Greg Siskind summarizes the PERM regulation in a question and answer format.

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USCIS Guide for Aliens with Extraordinary Ability (O-1) and Accompanying/Assisting Aliens (O-2)
The Office of Business Liaison of the USCIS released Employer Information Bulletin 15 providing basic information about Aliens with Extraordinary Ability (O-1) and Accompanying/Assisting Aliens (O-2)

DOJ Immigration Litigation Bulletin: July/August 2004
The Department of Justice Office of Immigration Litigation released the July/August 2004 issue of its publication, Immigration Litigation Bulletin (thanks to Dan Kowalski of Bender's Immigration Bulletin for helping to make OIL bulletins available online).

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Help Wanted: Immigration Paralegal
The Law Office of Nina Fantl in Austin, Texas seeks a highly motivated, hard-working paralegal with interest in stable, long term employment at a small firm. Must have 1+ years of experience in business immigration, including the preparation of all types of nonimmigrant visa petitions (H-1B, L-1, E-1/2, O-1, TN), and immigrant visa petitions. Highly desirable: Spanish fluency and knowledge of IT. Excellent writing, communication, case management and technology skills. Send your resume + cover letter describing your interest, qualifications, financial requirements and career goals in strict confidence to Nina Fantl at

Help Wanted: Immigration Paralegal
Vorys, Sater, Seymour and Pease LLP, based in Columbus, Ohio, seeks a paralegal with 2+ years experience in employment-based non-immigrant and immigrant categories, including labor certs. Opportunity to play a key role in supporting a mature and expanding practice. Bachelor's degree and ABA certificate preferred. Must be detail-oriented with excellent writing, organizational and computer skills. Good benefits. Salary commensurate with experience. Send resume by mail to: Donna Prehm, Vorys, Sater, Seymour and Pease LLP, PO Box 1008, Columbus, Ohio 43216, by fax: 614-719-4913, or by email:

Help Wanted: Immigration Attorney
Gonzalez and Harris, an A-V rated firm in Pasadena, California, is seeking a highly motivated, hard-working attorney with interest in stable, long term employment on partnership track. Must have four years+ of experience in business immigration, including the preparation of all types of nonimmigrant visa petitions (H-1B, L-1, E-1/2, O-1, TN), and immigrant visa petitions. Highly desirable: experience working with Japanese clients, consular work, health-related occupations, and strong EB1 background. Excellent writing, communication, case management and technology skills; experience motivating, managing and training immigration paralegals. Send your resume + cover letter describing your interest, qualifications, financial requirements and career goals in strict confidence to Josie Gonzalez at

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Readers are welcome to share their comments, email: (300-words or fewer preferred).

Dear Editor:
I agree with your summary of PERM = no SWA + attestations. I would add that without a hint of irony, the federal agency charged with protecting US workers has displaced hundreds of them (SWA personnel) in favor of a computer program. Now if only they would have retained a firm in Bangalore to build the PERM software.

Bob Webber, Webber Law Firm, LLC
Edina, MN

Dear Editor:
In 20 CFR Section 656.17(d) of the PERM regs on page 77392 in the Federal Register version, we learn that there can be no PERM conversion if a job order was placed for a pending case before PERM takes effect on March 28,2005. On first glance, this would appear to throw out many RIR cases where the employer, either to show good faith, to demonstrate diverse recruitment or simply to comply with state procedures, places a job order with the SESA/SWA. Does this preclude conversion to PERM? No. Look at the comments on page 77342 which speak of placement of a job order under 20 CFR Section 656.21(f) of the current regs. If you go to 20 CFR 656.21(f) of the current LC regs, you will see that the "local office" has to "prepare and process an Employment Service Job Order" using the information in Part A of the ETA 750. The SESA/SWA, not the employer, must prepare or process a job order and place it into the "regular Employment Service recruitment system". So, in an RIR case, where the Employer acts, not the SESA/SWA, and where there is no supervised recruitment, there should be no PERM preclusion. This needs to be clarified by DOL.

Gary Endelman


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Publisher:  Sam Udani    Legal Editor:  Michele Kim

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