Immigration Update: Latest Changes to PERM Labor Certification

Introduction

The Department of Labor has made significant structural and substantive changes to the employer-sponsored Application for Permanent Labor Certification process, and we are filling you in on the details! Both prospective green card applicants and sponsoring employers should benefit from this blog, as it is crucial for all involved to stay up to date with these developments.

Background on the Employer-Sponsored Green Card Process

Before we delve into the updates, let’s briefly recap this particular employer-sponsored green card process. An Application for Permanent Labor Certification (also known as PERM or labor certification) is a preliminary green card step designed for foreign workers who receive a full-time job offer from a U.S. employer and wish to pursue permanent employment opportunities in the country. Unlike some other applications filed directly with the Immigration Service (USCIS), the PERM application is submitted on Form ETA-9089 for review by the U.S. Department of Labor’s Office of Labor Certification. As we covered in a previous detailed video on how to obtain an employer-sponsored green card, the first step in this process entails filing a prevailing wage request. At this stage, employers provide detailed information about the offered job, including job title, duties, required experience, and job location, through the Department of Labor’s Foreign Labor Application Gateway (FLAG) online portal. After a few months, the Department of Labor responds with a wage figure associated with the position in the area of intended employment, ensuring the sponsored foreign worker receives at least that amount in compensation.

PERM Application Submissions Through FLAG Portal

On May 15, 2023, the Department of Labor consolidated the filing process in a single platform and announced that PERM applications would no longer be submitted through the prior legacy online system but through the same FLAG portal where prevailing wage requests are uploaded. While this may seem like a minor administrative change, it has implications for both applicants and employers.

Revised Form ETA-9089

In addition to the change in online filing location, Form ETA-9089 was itself revised with some notable revisions detailed below. Keep in mind that this overview does not encompass all the changes but provides a glimpse into what you can expect.

1. Number of Employees on Payroll: The revised Form ETA-9089 in Section A, Question 14 requires employers to disclose the number of employees on their payroll in the area of intended employment and is meant to provide the Department of Labor with a better understanding of an employer’s workforce. This question, however, may need to be answered differently in situations where employees are required to travel to unanticipated client sites.

2. Dual Representation: Employers are now asked whether they have engaged an agent or attorney who also represents the sponsored foreign worker. This question aims to ascertain the nature of the PERM representation ensuring compliance with 20 CFR 656.12(b). However, it has already created confusion among immigration attorneys as to how to best answer this field when legal work includes the common and legitimate practice of representing both the employer and the employee.

3. Nature of Work Site and Family Relationship: The revised form requests details about the type of work site where the foreign worker will be employed. Employers must indicate if it’s the employer’s business premises, private household, or the employee’s private residence, clarifying the specific work environment. The form also splits one question found in the retired version of Form ETA-9089 pertaining to familial relationships into two separate questions found in the new form’s Section A, Questions 16 & 17 and is likely meant to assess whether any bias may have crept into the recruitment process.

4. Business Necessity Justification: In specific circumstances, such as when proficiency in a foreign language is required or preferred for performing job duties, the new form mandates the completion of an additional appendix. Employers must provide a business necessity justification, explaining why proficiency in a foreign language is crucial for the position. Similarly, when the job opportunity involves a combination of occupations, employers must justify the business necessity for this arrangement. Historically, business necessity justifications like foreign language requirements and positions involving a combination of occupations have triggered audits. With the new form explicitly demanding disclosure of these justifications from the outset, it remains to be seen whether the number of audits will increase or decrease.

5. Auto Population of Certain Fields: The new Form ETA-9089 will now be linked to the PERM case’s prior-issued prevailing wage determination in the FLAG system and will auto populate with certain information contained in Form ETA-9141.

Implications of the Changes

At this early stage, it is unclear as to how these new PERM applications will be adjudicated. If history is any predictor, they may be met with an initial wave of audits or improper rejections, as happened in 2005 when the current labor certification process transitioned over from its predecessor known as Reduction in Recruitment (RIR). While the integration of the PERM application into the FLAG system suggests an enhanced focus on efficiency and streamlining, the inclusion of additional requirements, such as providing business necessity justifications upfront and answering ambiguous questions regarding representation, may cause confusion and delays in processing.

Conclusion

Thank you for reading our blog detailing recent changes affecting the PERM process. Staying informed about these updates is vital for individuals seeking employer-sponsored green cards and employers interested in sponsoring foreign workers. While it’s too early to gauge the full impact of the changes, we will continue to monitor the situation closely and keep you informed. We appreciate your support and look forward to providing you with more empowering articles in the near future.