BALCA Update: Filing a Second PERM for the Same Employee

This is an alert from AILA

by the AILA DOL Liaison Committee

On September 16, 2016, in Matter of Allianz-9-22-16, BALCA upheld the Certifying Officer’s (CO) denial where the employer had filed two PERM applications for the same employee with “substantially comparable job duties,” noting that in accordance with 20 CFR §656.24(e)(6), an employer is not permitted to have more than one labor certification actively in process for the same foreign worker in the same job opportunity.1 In this case, the employer submitted a PERM application for a “Paralegal and Legal Assistant.” The application was denied, and the employer filed an appeal. In 2011, while the appeal was pending, the employer submitted a second PERM application for the same employee for the position “Senior Legal Assistant; Compliance Mutual Fund Specialist.” The CO denied the second application, citing 20 CFR §656.24(e)(6).

Though BALCA noted that the employer failed to respond to an email from DOL asking the employer to confirm which application it wished to proceed with, the decision does not rest on the
employer’s failure to respond, and BALCA does not state that DOL is required to send such an email.

Additionally, members with similar cases have recently reported receiving denials on second PERM applications without receiving an email asking which application the employer would like to pursue. As such, when filing a second PERM for an employee in the same occupation, a best practice is to first withdraw the initial application. A PERM application may be withdrawn electronically or by sending a withdrawal request via email .