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Re-Filing a Non-PERM Case Under PERM

If a job order has not been placed for a pending, non-PERM labor certification application, the application may be re-filed under PERM without loss of the priority date under certain conditions. In order to re-file and maintain the priority date, the PERM application must be submitted pursuant to all PERM requirements and it must contain an identical job opportunity.

Withdrawal of Prior Case

In order to re-file under PERM and preserve a priority date from an earlier case, the original labor certification application must also be withdrawn. One significant issue is that filing an application and stating the employer’s desire to use the original filing date will be deemed to be a withdrawal of the original application. This deemed withdrawal occurs even if the request to use the original filing date is denied.

If a non-PERM labor certification is withdrawn prior to filing a PERM application, preservation of the existing priority date requires that the PERM application must be submitted within 210 days of the withdrawal of the original application. The employer should be prepared to send a copy of the original application, including amendments, to the CO, if requested.

A job opportunity is identical if the employer, foreign national, job title, job location, JOB REQUIREMENTS, and job description are the same as those in the original application. The original application includes all accepted amendments up to the time that the application was withdrawn.