On June 1, 2023, the Department of Labor (DOL) officially transitioned its online PERM labor certification filings from its legacy PERM portal to the FLAG System. In addition to announcing the PERM system transition, the DOL announced the release of a new Form ETA-9089, including a number of never before seen questions likely to trigger an audit if not answered carefully.
The PERM labor certification process is the first step a U.S. employer must take when hiring a foreign worker for permanent employment in the U.S. Before filing the labor certification, employers are required to obtain a prevailing wage determination (“PWD”) from the Department of Labor (“DOL”) first and then conduct a test of the U.S. labor market to determine if there are any qualified U.S. workers willing and able to fill the position who meet the minimum requirements for the position. Once the labor market test is complete, employers can file the Application for Permanent Employment Certification (Form ETA-9089) with the DOL. In April of 2023, the DOL announced the transition of the PERM filing platform from the Foreign Labor Certification Permanent Online System (“Legacy PERM System”) to the Foreign Labor Application Gateway (“FLAG”), which was already being utilized to file Form ETA-9141 (Request for Prevailing Wage Determination). A PWD is required before filing the Form ETA-9089.
Below is an overview of some of the biggest changes to the PERM filing system and Form ETA-9089.
1. Account Registrations: Unlike the Legacy Perm System, employers are not required to register an account and create a sub-account for attorneys to file the Form ETA-9089 application. In addition, the DOL will no longer be sending sponsorship verification questionnaires to the employer. Both the attorney and employer, however, should receive a confirmation email after the application has been submitted on FLAG.
2. Audits: The DOL has confirmed that the Legacy Perm System will remain active for post-filing functions, such as audit responses. If you have filed a Form ETA-9089 in the Legacy Perm System, your audit response must be filed using the legacy system.
3. Schedule A and NIW: For PERM applications not requiring certification, such as Schedule A or National Interest Waivers (“NIW”), the DOL has released a “final determination” version of the Form ETA-9089 to be used when filing a Form I-140, Immigrant Petition for Alien Workers.
4. Linking PWD: Employers will need to link a previously submitted PWD to the Form ETA-9089 on FLAG. All of the information from the PWD is automatically populated into the Form ETA-9089. While you are able to make changes to the employer point of contact section on the Form ETA-9089, substantive changes (i.e., place of employment, employer, etc.) should not be made to avoid delays in processing. If an individual outside of your network prepared the PWD, you have the option to manually type in the PWD case number to link it to the new Form ETA-9089.
5. Warning Signs on ETA-9089: Warning signs on the Form ETA-9089 which populate during the use of the online form, do not represent a hard stop or that your answer to the question is incorrect. You can continue with the application and proceed with submitting it regardless of any warning signals assuming you wish to do so.
6. New Question in Section A: Employer Information: #14: “Number of current employees on payroll in the area of intended employment” This question differs from the previous version in Form ETA-9089 , because it is specifically asking for the # of employees in the area of intended employment, as opposed to the total number of employees for the company as a whole.
7. New Questions in Section D: Foreign Worker Information:
a. #1 Appendix A: The new Form ETA-9089 dedicates an appendix solely for listing the foreign national’s personal information and qualifications. Unlike the previous version of Form ETA-9089, the new version requires you to list ALL degrees/certifications/training received by the foreign national. If special skills or requirements were listed on the PWD, you must include all information that qualifies the foreign national for the position in this appendix. In addition, the DOL has instructed that for those who have attended institutions outside of the U.S., you are required to check “other degree” regardless of whether you have obtained an education evaluation indicating a US equivalent.
b. #2: “Has the employer contracted with an agent or attorney representing the foreign worker covered by this application?” This is a dual representation question and concerns whether the employer is receiving payment of any kind from the foreign national, which is prohibited as to the labor certification’s preparation
8. New Questions in Section F: Area of Intended Employment: Sub-sections A-C: Employers are instructed to choose a worksite location and list the specific worksite address in this section. Some questions, such as MSA/OES Code and MSA Name/OES Area Title, are pre-populated based on the linked prevailing wage determination. However, in cases where the actual worksite is unknown or if it is a telecommuting position, you should check “Business Premises” and include language indicating so in the free text box.
9. New Questions in Section G: Additional Job Opportunity Information and Other Requirements: This section is especially important, as questions 6-12 are used to determine if the OFLC officer should issue an audit to seek additional information. Answering “yes” to any of these questions will prompt you to include an explanation in Appendix C.
a. #9: To answer this question, you must determine the Specific Vocational Preparation (“SVP”) level assigned to the occupation. The OFLC uses the O*NET OnLine (not the OFLC Online Wage Library) to determine whether the job requirements exceed the SVP. If they do, you will need to check “yes” to this question and include an explanation of why the job requirements are necessary for the position.
b. #10: If a credentialing service was used to qualify the foreign national’s experience or education, you would need to check “yes” to this question and provide the details of the foreign national’s education/experience as listed in the education evaluation.
10. Section H: Recruitment Information: While most of the required information has remained the same in this section, the new Form ETA-9089 includes a sub-section specifically addressing the Notice of Filing required for every PERM application. Employers are required to check ALL boxes that apply. It is important to note that the PERM regulations have not changed. Thus, since a physical Notice of Filing is a requirement for the labor certification process, box 1b should always be checked.
The transition to the FLAG system has not proven to be a smooth one. Issues have already been raised regarding linking expired PWDs or those not submitted within the “Network,” which could have severe consequences given the time-sensitive nature of these applications. The OFLC continues to provide guidance and updates on the new Form ETA-9089 and FLAG system on their website: https://flag.dol.gov/announcements.
While the new FLAG system intends to streamline and standardize information collection, the implementation of the new process is not anticipated to result in improved processing times. As of June 2023, processing time for PERM applications is at nine months (audited PERM applications are processing at 15+ months). The most up-to-date PERM processing times can be found here.
About the Author:
Najah S. Allaham is an associate with Dickinson Wright’s Immigration Practice Group. Najah has years of experience assisting employers obtain employment based immigrant visas, including PERM labor certifications, EB1, EB2, and EB3 immigrant visas as well as various nonimmigrant employment based visas including E-2, L-1,H-1B, H-2B, TN visas. She can be reached at 248-433-7579 or firstname.lastname@example.org and her bio can be accessed here.