New DOL System iCert for Labor Certifications - Part 2 of 2
Posted Feb 27, 2009
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See also New DOL System iCert for H1B LCAs - Part 1 of 2
Posted Feb 20, 2009
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Last week MurthyDotCom and MurthyBulletin readers learned about the U.S. Department of Labor's (DOL's) upcoming new system, known as iCert. Once implemented, the iCert system will be used for filing labor condition applications (LCAs) for H1Bs and labor certifications (LCs) for permanent resident ("green card") applicants. In Part 1 (20 Feb 2009) of this article, the changes in the LCA filing process is explained. Part 2 of this article, presents readers with the changes they can expect in the PERM/LC process. As explained previously, the iCert system is a single online portal that will replace both of the existing systems used for LCAs and for LCs.
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Establishment of the Accounts System
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As a unified system for LCs and LCAs, the iCert system will allow for companies and attorneys, as their representatives, to set up accounts to file both LCs and LCAs. The DOL will continue to verify sponsorship of a PERM/LC by eMailing the sponsoring employer. The DOL will also issue a notice within the company's iCert account, if one has been established.
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Implementation Date for iCert Program by August 1, 2009
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The 2009 timeline for implementation is as follows.
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July 1 Start accepting revised PERM/LC Form 9089 through iCert
July 31 Last day to file PERM/LC Form 9089 through pre-iCert system
August 1 Existing system disabled for filing
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Online Forms Require Specific Data
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The Form 9089 used for PERM/LCs has undergone revisions. The DOL reported that their technical staff has tried to design the online form with multiple warnings. DOL emphasized the importance of reviewing every field, as the online system can automatically fill certain data fields. Some of the new features of the Form 9089 include a place for an employer’s trade name and requests for the number of employees in the area where the sponsored job is located.
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Importance of Job Location for the PERM Filing
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Every job offer has a geographic component, with the pre-filing recruitment needed in the area of intended employment. The form asks for the types of worksite location: business premises, employer’s private household, employee’s private residence, or no single specific worksite or physical location. The form goes on to ask for data regarding metropolitan statistical areas covering the vicinity of intended employment, if known. This geographic location can be important if there have been layoffs of U.S. workers, as explained in our January 23, 2009 MurthyBulletin article, Labor Certifications after Employee Layoffs.
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Form Changes Regarding Education and Experience
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The DOL modified various other parts of the current Form 9089 in an effort to add clarity, specificity, and convenience with respect to the education and experience requirements. The new form asks whether a suitable combination of education, experience, or training is acceptable as a qualification for the position.
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Employers can now have up to three alternative acceptable requirements, in addition to the primary minimum education and experience accepted. However, the DOL warns when the employer indicates that there are alternative acceptable job requirements, iCert will auto-fill the data with the information from the primary requirements boxes. Thus, it is necessary to exercise care and ensure that changes are made so that the form correctly reflects the alternative requirements.
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Business Necessity Information
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The form also provides a place to explain the business necessity of certain job requirements that the DOL may view as excessive and beyond what is truly needed to perform the duties of the position. The form allows for explanation of the business necessity of a foreign language requirement, as well as other job requirements that exceed what the DOL considers to be normal, based upon their Occupational Employment Statistics. The issue of business necessity was not previously addressed in the 9089. It was typically an issue that explained in an audit.
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Changes in Employer and Attorney Attestations
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The Permanent Programs Manager emphasized the importance of reviewing the attestations in Section M, Declaration of Employer. The DOL has made some changes to these conditions, which are accepted upon the filing and signing of the form. The new form provides a mechanism for attorneys and employer representatives other than those who prepared the form initially to sign the LC after DOL certification.
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PDF Form for Nurses and Other Schedule A Positions
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Schedule A cases for nurses and physical therapists do not require certification of Form 9089. However, it is necessary to prepare the form and attach it to the I-140 petition for immigrant worker. To accommodate this, the iCert program generates a PDF version of the 9089. If one were to accidentally submit such a form by electronic means, the DOL has stated that no status will appear in the employer’s online account and the filing will be deleted from the system.
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Conclusion
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We at the Murthy Law Firm appreciate the insight and guidance provided by the DOL. As with any changes to an existing system, it will be necessary to work with the iCert system to assess its benefits and drawbacks. The current PERM system is suffering from extreme delays and backlogs. Perhaps this new system will bring some relief, if audits and other causes for delay can be reduced. MurthyDotCom and MurthyBulletin readers will be updated as further developments are announced.
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