OFLC Issues Guidance on PERM Application Denials Based on How Employers Completed Section H.10-B of Form ETA-9089

The U.S. Department of Labor’s Office of Foreign Labor Certification (OFLC) has issued guidance regarding the recent trend of permanent labor certification (PERM) application denials based on how employers completed section H.10-B, “Acceptable Alternate Occupation Job Title,” of Form ETA-9089, Application for Permanent Employment Certification.

PERM labor certification is a step in the permanent residency application process that requires employers to conduct labor market tests to determine if there are qualified U.S. workers for sponsored roles.

Quick Hits

• OFLC is no longer issuing denials for PERM applications filed on or before May 30, 2023, based on how employers completed section H.10-B of Form ETA-9089.
• Effective June 1, 2023, OFLC will accept new versions of Form ETA-9089 only through the Foreign Labor Application Gateway system.

Section H.10-B provides space for an employer to “[i]dentify the job title of the acceptable alternate occupation” that would qualify the candidate to meet the minimum experience requirements for the job that is the subject of the PERM application. OFLC has found that rather than list specific occupations in section H.10-B, some employers have instead referred to section H.14 where “[s]pecific skills or other requirements” for the job are listed. In these situations, employers have listed only specific/special skills and/or alternate combinations of the required education and experience and have failed to list specific alternate occupations.

OFLC has determined that denials on this basis are valid but acknowledges that the agency has been inconsistent in denying applications for this reason. As a result, OFLC has stopped issuing denials on this basis for any application filed on or before May 30, 2023. OFLC will also overturn denials that were based solely on this issue. OFLC will identify relevant applications for which requests for reconsideration have not yet been submitted and is encouraging employers not to submit requests for reconsideration at this time. For those cases for which employers have already submitted requests for reconsideration, OFLC will prioritize processing. For applications denied for additional reasons, OFLC will overturn the H.10-B denial basis but uphold the other denial grounds if employers have not submitted requests for reconsideration or if the additional denial ground(s) have been deemed appropriate.

Effective June 1, 2023, OFLC will only be accepting a new version of Form ETA-9089 in the Foreign Labor Application Gateway (FLAG) system. OFLC has issued unofficial watermarked forms on its website. The new form is designed to align Form ETA-9089 with the Form ETA-9141 prevailing wage determination, which is already submitted through the FLAG system, to streamline the entire process. With the new Form ETA-9089, data previously pulled from legacy section H.10-B is expected to be pulled from Form ETA-9141.

OFLC has acknowledged that employers may have questions about how to complete Form ETA-9141 as a result of this announcement and has indicated that it will issue guidance in the near future, if it is deemed necessary.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to these and other policy changes and will post updates on the Immigration blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.