The Department of Labor’s (“DOL”) Office of Foreign Labor Certification (“OFLC”) recently announced a revised Form ETA-9089, which it will begin accepting in the Foreign Labor Application Gateway (FLAG) system on May 16, 2023. It will no longer accept any new applications submitted via the legacy PERM Online System after May 15, 2023, at 6:59 PM EST, so any eligible Form ETA-9089 drafted under the legacy PERM system should be submitted before then.
Overall, it appears that the revisions to the Form ETA-9089 are intended to promote greater efficiency and transparency in OFLC’s review of applications. Some notable changes include:
- Employers should no longer be required to maintain DOL portal accounts to file PERM applications, although it is not clear what will happen to the legacy employer accounts;
- Users will no longer be required to enter prevailing wage determination (“PWD”) details into the ETA 9089. Rather, the new system will link the PERM application to existing PWDs in FLAG through a dropdown option. Once the PWD is confirmed, its information will auto-populate in the PERM application;
- Users are now required to provide information on the type of worksite. If the PERM position will have multiple worksites, the user must list those worksites on the PWD because they will be selected from the linked PWD and then added to Appendix B. If the PERM position has a roving or non-specific work area, the user should select “No One Specific Worksite” and then add details in the “Other Definable Geographic Areas” section;
- Users must now specify the employer, institution, school, or training provider in which the foreign worker attained the skills, abilities, and/or proficiencies which, practically speaking forces the employee to secure detailed letters of experience prior to filing the PERM;
- Employers are now required to disclose whether the employee is relying solely on qualifying experience the foreign worker gained while working for the employer, including as a contract employee;
- Employers are now required to input the current number of employees on payroll in the area of intended employment, as compared to the total “number of employees” in the retiring form;
- Users will need to indicate how the Notice of Posting (Notice of Filing) was posted at a worksite (i.e., physical, electronic, etc.); and
- If a foreign worker attained a diploma/degree outside of the U.S., users are instructed to mark “Other” and specify the U.S. equivalent of the diploma/degree.
There are, however, still some outstanding points which have not yet been addressed by the DOL – such as whether the new system will send out the sponsorship submission email in a new format, or whether the employer will need to first take any additional steps before submitting an ETA-9089 under the new system (given that DOL employer portal accounts are no longer required).
Global Immigration Partners is currently reviewing the new form and implementing internal changes to our processes accordingly. Employers may start seeing new Form ETA-9089s drafted under the new system, and we will provide future Alerts if there are additional important developments during this transition process.