OFLC to Implement New Form ETA 9089 for PERM

The Office of Foreign Labor Certification (OFLC) soon will cease accepting form ETA 9089, application for permanent employment certification (PERM), via the legacy PERM online filing system, and instead will require all such applications to be submitted through the Foreign Labor Application Gateway (FLAG) system. More specifically, PERM filings submitted after May 15, 2023, at 6:59 pm EST, must use FLAG. The revised system differs in structure and substance from the retiring form ETA 9089, and offers a streamlined process for completing the new form ETA 9089.

New Home for Form ETA 9089 on the FLAG System

As mentioned, after May 15, 2023, the ETA 9089 must be submitted via FLAG, the same system that currently is used to request prevailing wage determinations from the U.S. Department of Labor (DOL). The new ETA 9089 form will be linked to the prevailing wage determination previously submitted for the PERM position and will auto-populate certain fields.

Until the OFLC begins accepting the revised ETA 9089 form for submission on May 16, 2023, filers may access the new form and may begin creating and staging applications. The OFLC conducted two webinars on April 19 and 20, 2023, to educate filers on the new form and FLAG system filing process. The webinars were recorded and are available to the public. Additionally, the OFLC has posted watermarked previews of the revised form and its appendices so that filers can become familiar with the new version of the form.

Notable Changes to Form ETA 9089

The revised version of form ETA 9089 differs both structurally and in substance from the retiring version. Structurally, many of the informational fields carried over from the previous form are laid out differently and information for certain fields must be entered using appendices (e.g., an employee’s education and/or experience qualifications, worksite location). In substance, the new form requests more information about the sponsoring employer, the foreign national employee’s background and qualification/s for the position, and requires an employer to explain the business necessity if the employer’s minimum requirements for the offered position exceed what the DOL believes is standard or “normal.”

Conclusion

Although the new and revised ETA 9089 form serves the same purpose, filers should become familiar with the new form before it goes into effect. As many are aware, PERM is the first stage towards obtaining permanent resident status in the U.S. for most employment-based immigration cases. Hence following the rules is critical for the ultimate success of the case.

Copyright © 2023, MURTHY LAW FIRM. All Rights Reserved