The Office of Foreign Labor Certification (OFLC) of the U.S. Department of Labor (DOL) recently changed its permanent labor certification (PERM) process by issuing a new PERM Form ETA 9089 to be submitted through its FLAG system. The Foreign Labor Application Gateway (FLAG) is a portal through which U.S. employers submit various applications to the OFLC that include prevailing wage requests (PWR) (Form ETA 9141), and now Form ETA 9089. The new Form ETA 9089 and use of the FLAG system for submission became effective June 1, 2023.
OFLC previously used a system called iCERT for the preparation and submission of the PWR form, and Form ETA 9089. OFLC created the new FLAG system in 2018 and transitioned its use for submission of a PWR (along with other visa forms such as the Labor Condition Application (LCA) associated with H-1B petitions) to that platform. At that time, OFLC did not transition Form ETA 9089; it remained under the iCERT system for submission. OFLC has now created a new PERM form submitted only through FLAG.
OFLC has changed Form ETA 9089’s content and format to work with their FLAG system. Significantly, it has aligned the Form ETA 9089 with the PWR Form ETA 9141 so that an employer no longer manually enters data about the prevailing wage; nor information about the job opportunity that includes job duties, minimum requirements, experience, and special requirements. Now, FLAG requires the linkage of Form ETA 9089 to the prevailing wage determination that results in the pre-population of various information. Unlike the old Form ETA 9089, the job opportunity information does not show anywhere on the new Form ETA 9089 as it ultimately appears upon submission. Instead, the OFLC will access that information directly from the prevailing wage determination.
Key changes to the Form ETA 9089 include:
- Under the Employer Information section, the number of current employees on payroll relate only to the area of intended employment, rather than to the employer as a whole;
- Foreign Worker Information is provided through an Appendix A. Appendix A is used to collect information about the foreign national beneficiary and his/her qualifications. It consolidates information contained in multiple sections of the legacy Form ETA 9089. Key changes include:
- Foreign Worker Education – the request for information relating to the foreign national’s education distinguishes explicitly between a degree earned from a U.S. education institution and a degree earned from a foreign institution;
- Training Qualifications – completion of this section is required if training, a certification(s), and/or a license(s) is required for the job opportunity;
- Foreign Worker Skills – completion of this section is required if there are special skills, abilities, and/or proficiencies required by the job opportunity, commonly referred to as the special requirements; and
- Foreign Worker’s Experience Credentials – completion of this section is required if there are experience requirements for the job opportunity that qualify the foreign worker for the job opportunity. It includes paid and unpaid experience, internships, apprenticeships, etc.
- Under the Job Opportunity and Wage Information section, key elements include:
- The Form ETA 9089 now seeks to define the area of intended employment with as much geographic specificity as possible by identifying every worksite location where work will be performed. The worksite location is usually described as the companies “Business Premises.” Where an individual works from his home in a teleworking situation, this location is indicated as the company’s headquarters controls;
- If there is more than one worksite indicated in the prevailing wage determination, an Appendix B provides the opportunity to provide those worksite(s); and
- An “Other Definable Geographic Area(s)” section is completed where the specific metropolitan statistical area (MSA) or the expected area(s) of intended employment are not known. This section is also used to identify job opportunities dispersed over a wide geographical area, or where the job opportunity requires telecommuting, roving, travel or possible relocation.
- Under the Additional Job Opportunity Information section, key elements include:
- DOL has now formalized Matter of Kellogg into the Form ETA 9089 where before it was not. Kellogg requires that any alternative requirements bear a reasonable relationship to the primary requirements (can’t require as an extreme example a Bachelor’s degree and two years of experience or in the alternative a Master’s degree and 10 years of experience). The company must indicate its willingness to accept any combination of education, experience, or training when assessing the qualifications of a U.S. worker;
- Employment as a contractor with the applying employer must be considered as the same as directly working for the employer when determining if prior experience was gained “on-the-job”;
- The DOL now specifically requires identification when the position exceeds that which is normal to the occupation as defined by a designation published by the DOL called Job Zones. If it does, which is the majority of cases filed under the EB-2 employment-based preference category, a short description explaining why the Job Zone is being exceeded must be included; and
- If the foreign national has a foreign degree, an explanation must be included describing what experience, education or combination of both was used to qualify the foreign national.
- The Notice of Posting (NOP) section now breaks out how a NOP may be effected. If there is no bargaining representative, the NOP must be physically posted to employees for 10 consecutive business days in a conspicuous location at the places of employment. In addition, the new Form ETA 9089 breaks out the other means of posting that include an electronic or in-house notice. These latter means are only necessary if they are the company’s normal practice of informing current employees of job vacancies.
A significant addition to the PERM process is that DOL has also stated that all documents associated with each PERM submission will go into a “Data Hub” where the USCIS and the U.S. Department of State will have access to associated documents via VIBE so that the agencies will now have access to all relevant information pertaining to the application.
The requirement to use FLAG to submit a Form ETA 9089 is a wholesale change in the manner PERM applications are administered. Clarifications and changes to the system are apt to follow.