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Quick Hits
- In 2018, OFLC replaced the iCERT system with the Foreign Labor Application Gateway (FLAG) system, and successfully transitioned prevailing wage determinations, among other visa programs, to the new system.
- On May 16, 2023, OFLC began accepting the new Form ETA-9089 on the FLAG system.
- The OFLC recently began issuing PERM certifications for cases filed in the FLAG system, using the new version of the Form ETA-9089. USCIS has offered guidance on filing Form I-140 using the new Form ETA-9089.
- The legacy Permanent Online System, which provides public access to permanent labor certification applications and final determinations, will be fully decommissioned on December 1, 2024.
Key Takeaways
Starting December 1, 2024, account holders and the general public will no longer be able to access the legacy iCERT Permanent Online System and instead will be directed to the new Foreign Labor Application Gateway (FLAG) system. Stakeholders who need to download existing documents, upload new documents, or request specific case action on a pending application submitted on the legacy system will only be able to access their accounts before November 30, 2024, at 7:00 p.m. EST. This includes requests for reconsideration still pending adjudication.
OFLC announced its plans to modernize the PERM process in May 2023.
Applications still pending on the legacy system after November 30, 2024, will continue to be processed by OFLC; however, stakeholders who need to submit responses to the DOL, upload documents, or request a specific case action on an application previously submitted on the legacy system will need to do so by contacting the PERM Help Desk at PLC.Help@dol.gov. The DOL has instructed stakeholders to submit documents as PDF attachments and named with the iCERT case number assigned in the title of the attachment.
The DOL instructs employers and their attorneys or agents to monitor their account emails for correspondence and notifications on pending legacy applications.
In addition, OFLC recently began issuing PERM certifications on cases filed in the FLAG system, using the updated version of the Form ETA-9089. As a result, U.S. Citizenship and Immigration Services (USCIS) has offered guidance to the American Immigration Lawyers Association (AILA) related to filing Form I-140 with the new Form ETA-9089. Notably, the guidance released in AILA’s Practice Alert (AILA Doc. No. 24081200), states that petitioners are only required to submit the signed and certified two-page final determination document labeled “PERMANENT EMPLOYMENT CERTIFICATION APPROVAL” with the Form I-140 for PERM-based petitions. This must be signed by each party involved in the labor certification (i.e., petitioner, beneficiary, and/or attorney or representative).
The data contained in the Form ETA-9089 and Form ETA-9141 not included in the two-page final determination document will be transmitted to USCIS directly from the DOL for review and adjudication. Conversely, Schedule A (Group I or II) Form I-140 filings require petitioners to also include the complete Form ETA-9141 Prevailing Wage Determination, complete Form ETA-9089, Appendix A, and other appendices, in addition to the final determination document. National interest waiver I-140 petitions similarly require the complete Form ETA-9089, Appendix A, and other appendices, as applicable with a signed final determination document.
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.
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