BIB Daily presents bimonthly PERM practice tips from Ron Wada, member of the Editorial Board for Bender’s Immigration Bulletin and author of the 10+ year series of BALCA review articles, “Shaping the Future of PERM.” Questions or comments may be sent to Ron at ron.wada@tandslaw.com.
When considering whether to file a second PERM application for an employee whose first PERM application is on appeal, minor tweaks in the job description, job requirements, or travel requirements are not sufficient. If a different job title classified with a different SOC code cannot be offered, the advantages of a second PERM filing must be weighed against the disadvantages of withdrawing the first PERM. This is because the regulation at 20 CFR 656.24(e)(6) specifically bars “duplicate applications for the same alien in the same occupation.” In ambiguous situations, it appears that the PWD for the second PERM demonstrating a different SOC code for the second job will be strong evidence that the two PERMs are not for the same occupation.
The “same occupations” test has been highlighted by BALCA in a series of decisions going back to 2016 and most recently in Matter of Whitridge Associates, Inc., 2020 BALCA LEXIS 12 (BALCA Jan. 22, 2020), in which an application for a Business Systems Analyst position was denied by the CO on the ground that the application was the same as another application pending with BALCA and both applications are for the same employer, job opportunity, and alien. BALCA affirmed, stating, “the Employer contends that the two applications encompass different job opportunities because they involve different locations. We do not disagree that a job opportunity that entails potential assignments all over country is substantially different from one that involves placements only in the local area. For the purposes of the regulation, however, that distinction is immaterial. The proscription found in § 656.24(e)(6) does not address duplicate applications for the same job opportunity but rather duplicate applications for the same alien in the same occupation.”
For further information, see: Ron Wada, “Shaping the Future of PERM – BALCA Highlights 1Q 2020,” 25 Bender’s Immigr. Bull. 691 (May 1, 2020); Matter of Whitridge Associates, Inc., 2020 BALCA LEXIS 12 (BALCA Jan. 22, 2020); Matter of Majescomastek, 2019 BALCA LEXIS 246 (June 27, 2019); Matter of Allianz Global Investors of America, LP, 2016 BALCA LEXIS 594 (September 16, 2016).
