Beginning on June 1, 2023, filers submitting PERM Applications for Permanent Employment Certification must submit the revised ETA-9089 in the Foreign Labor Application Gateway (FLAG) system, the U.S. Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) has announced.
A U.S. employer hiring a foreign worker and petitioning for that worker to be eligible for lawful permanent resident status must use Form ETA-9089. OFLC will not accept the previous version of Form ETA-9089 after May 31, 2023.
DOL is seeking to streamline the labor certification process with its revised ETA-9089. Filers will be required to enter the Prevailing Wage Determination number, for example, so that information from the prevailing wage can be automatically populated into the ETA 9089.
Problems already have been raised with pre-populating forms, including the inability of counsel to file an ETA-9089 on behalf of a client if the underlying prevailing wage (ETA 9141) had been filed by different counsel. Pre-population also limits the ability to properly describe the worksites. This is particularly important these days given that telecommuting and hybrid work have become ubiquitous. DOL has not indicated whether it intends to address this and other issues before June 1.
Changes observed on the revised form include:
- The new form asks for the number of employees on payroll in the area of intended employment (the current form asks for total number of employees).
- The new form includes a question regarding dual representation – Has the employer contracted with an agent or attorney that also represents the sponsored foreign worker?
- The new form asks for type of worksite location: whether employer’s business premises; employer’s private household; or employee’s private residence.
- For all worksite locations, the new form asks for the MSA/OES area code and title.
- The new form reinstates the Kellogg language and asks if employee qualifies for the job opportunity by the virtue of the employer’s alternative requirements. If so, the form asks if the employer is willing to accept any suitable combination of education, training, and experience.
Finally, the new form requires filers to complete an additional appendix and to provide a business necessity justification when affirmatively answering the following:
- Whether the job opportunity requires the worker to live on the employer’s premises.
- Whether the job opportunity involves a combination of occupations.
- Whether proficiency in a foreign language is required or preferred to perform the job duties.
- Whether the job requirements exceed the SVP level assigned to the occupation as shown in the O*NET Job Zones.
- Whether the employer used a credentialing service to qualify the foreign worker’s education or experience requirements.
- Whether the employer received payment of any kind for the submission of this application.
- Whether the employer had a layoff in the occupation involved in the application or in a related occupation within the six months immediately preceding the filing of the application in the area of intended employment.
Previously, DOL would raise issues surrounding these questions in a post-filing audit, if at all. Under the revised ETA-9089, employers must provide a justification at the time of filing for any of the above issues to which they are required to answer “yes.” Many employers may be answering in the affirmative to the question on “whether the job requirements exceed the SVP level assigned to the occupation as shown in the O*NET Job Zones.” Employers commonly require a higher-level degree or more years of experience than what is considered “normal” by DOL. Thus, a large majority of filings will require including a business necessity justification. Employers should be prepared to work closely with their immigration attorneys to navigate the complexities surrounding the revised ETA-9089.