April 16, 2007
Up until August 2005, the Department of Labor (DOL) did not allow multiple labor certification filings for the same alien, even if the job opportunity was different. DOL’s position was that if the employer has filed multiple cases for the same alien employee, the second case replaced the first one and the priority date was lost.
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In August 2005, the DOL has removed its prohibition against multiple filings from its FAQ’s and stated that the “Department is considering questions and information stakeholders have submitted in response to this FAQ posting, and will be developing and posting a clarified response in the near future”.
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At the DOL Stakeholders Liaison Meeting held on March 15, 2007, the DOL stated that if the second case is the same as the first one, meaning that it is the same employer filing for the same alien employee with the same Standard Occupational Classification (SOC) then the first case, whether it is pending, approved, or on appeal, has to be withdrawn or revoked before the second one may be filed. However, if the second case is substantially different from the first one, meaning that it is the same employer filing for the same alien employee, same occupation but with different duties and requirements, the second (new) case will be accepted and will not be automatically denied. The new case, however, will go an analyst that will review and determine if it is, indeed, a different job opportunity.
For more information, please contact the Guttikonda Law Firm.
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