The U.S. Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) has announced plans to revise the permanent labor certification (PERM) process in an effort to streamline the program, improve the employer experience, and speed up the processing of labor certification applications.
Quick Hits
- The new Form ETA-9089 is intended to streamline and standardize information collection.
- The DOL’s Office of Foreign Labor Certification (OFLC) has published unofficial, watermarked forms on its website.
- OFLC will begin accepting the revised Form ETA-9089 on June 1, 2023.
What Is PERM Labor Certification?
PERM labor certification is part of the permanent residency process that allows a U.S. employer to hire a foreign worker for permanent employment in the United States. Employers are required to conduct a labor market test in order to determine if there are any qualified U.S. workers for a sponsored position before they can continue with the remaining steps of the permanent residency process. The first step is requesting a prevailing wage determination from the DOL. Then, after conducting the labor market test, employers file the application for permanent labor certification by submitting OFLC’s Form ETA-9089.
Changes to the PERM Program
OFLC previously used its legacy iCERT system for the preparation and submission of both prevailing wage requests and labor certification applications. In 2018, OFLC replaced the iCERT system with a modern case management solution, the Foreign Labor Application Gateway (FLAG) and successfully transitioned prevailing wage determinations, among other visa programs, to the new FLAG system. Since then, OFLC has still used the iCERT system for Form ETA-9089 preparation and filing.
In 2022, OFLC announced the expansion of its modernization efforts in FLAG to include the PERM Labor Certification Program, but it only recently released details on how that process would look.
The New Form ETA-9089
As part of the PERM program’s transition to FLAG, OFLC is changing the content and format of the Form ETA-9089. The new form is meant to streamline and standardize information collection for employers, as well as introduce greater efficiency and transparency into the DOL’s review of applications.
By aligning Form ETA-9089 with the Form ETA-9141 prevailing wage determination in the FLAG system, the new form is better equipped to collect data used across all parts of the PERM program.
The unofficial, watermarked new form, appendices, and FLAG technical training have been published on the OFLC web page.
A few key changes to the Form ETA-9089 are outlined below.
Enhanced Integration: Form ETA-9089 and Prevailing Wage Determinations
The employer will no longer manually enter data about the job opportunity (job duties, minimum education, experience, and skill requirements). Instead, FLAG will directly link the Form ETA-9089 to a prevailing wage determination, allowing some responses to autopopulate by FLAG. The job description and minimum requirements will also not be contained in the final Form ETA-9089, as OFLC will access them via the linked prevailing wage determination.
Section E: Job Opportunity and Wage Information
The employer may now describe any conditions about the wage rate to be paid not captured by the prevailing wage determination, including “any bonuses, fringe benefits, subsidized housing or meals, or any other benefits associated with [the] job opportunity, as applicable.”
Section F: Area of Intended Employment Information
Information previously gathered in Section H, related to where the work will be performed, has been expanded and is now found in Section F. This new section allows employers to describe circumstances where the worksite is not known or could vary, including remote or roving employees.
Section G: Additional Job Opportunity Information and Other Requirements
Section G includes additional clarifying questions about the job opportunity to more closely align with the regulatory language, including the ability for the employer to indicate any alternate requirements.
Section H: Recruitment Information
Section I, Recruitment Information, is changed to the new Section H. The DOL reorganized sections to allow the agency to streamline data collection and processing based on circumstances that have varying recruitment requirements.
Appendix A: Foreign Worker Information
Appendix A collects information about the foreign worker beneficiary and the worker’s qualifications. The new Appendix A moves and consolidates information from sections J and K on the old form about the foreign worker. Appendix A gathers similar information to the old form, but provides additional and expanded fields for an employer to provide this information.
Appendix B: Additional Worksite Information
Appendix B gathers information on additional worksites and allows for the identification of all places of employment, aligning with Appendix A of the prevailing wage determination.
Appendix C: Supplemental Information
Employers are required to complete Appendix C when “Yes” is marked for any of the questions 6 through 12 under Section G on the Form ETA-9089. Specifically, this Appendix is used to elaborate or further explain the business necessity of one or more requirements of the employer’s job opportunity under consideration for permanent labor certification. Appendix C provides two of these sections in print form, but with electronic filing, additional sections may be added as needed.
Final Determination: Permanent Employment Labor Certification Approval
This two-page electronic final determination provides the official determination that “there are not sufficient workers who are able, willing, and qualified, and who will be available at the time of application for a visa and admission into the United States and place needed to fill the job opportunities for which certification is sought, and the permanent employment of the foreign worker will not adversely affect the wages and working conditions of workers in the United States similarly employed.”
Where Do We Go From Here?
OFLC will begin accepting the revised Form ETA-9089 on May 16, 2023, but employers may now prepare PERM applications in the FLAG system for submission on the go-live date. OFLC will no longer accept the previous version of Form ETA-9089 after May 15, 2023, at 6:59 p.m. EST, either electronically through iCERT or submitted by mail.
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.
