| 12. | Can the employer re-file a labor certification application filed under the previous permanent labor certification regulations under the new streamlined system and retain the filing date of the original application? | | |
| | | Yes, if a job order has not been placed pursuant to the regulations in effect prior to March 28, 2005, an employer may re-file 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 processing regulation. | | | |
| | Note: Indicating on the Application for Permanent Employment Certification, ETA Form 9089, the desire to use the filing date from a previously submitted application, i.e., marking ‘yes’ to question A-1, is deemed to be a withdrawal of the original application. |
| | | | | Note: If a job order for an application has been placed by the State Workforce Agency (SWA) as part of the traditional recruitment process under the regulations in effect prior to March 28,
2005, the employer is prohibited from re-filing the application and retaining the original filing date. However, if an employer placed a job order as a recruitment step in a reduction-in-recruitment application, the job order is not considered a job order placed by the SWA as part of the traditional recruitment process and the employer is permitted to withdraw and re-file. |
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| 13. | Will the job opportunity on the original and re-filed application not be considered identical if, for instance, the prevailing wage has changed? | | |
| | | No, having a different prevailing wage on the re-filed 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 re-filed 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. |
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