Employers seeking to hire a non-US worker on a permanent basis are generally required to undertake a lengthy, complex sponsorship process involving both the Department of Labor (“DOL”) and the United States Citizenship and Immigrations Services (“USCIS”). This process entails, among other steps, obtaining a “labor certification” from DOL, which requires employers to conduct recruitment steps to “test” the U.S. labor market, establishing that no qualified U.S. workers were available to fill the position offered to the immigrant worker, and that the immigrant worker will be paid, at minimum, the “prevailing wage” for the position.

Once the recruitment steps have been conducted and the prevailing wage has been established, employers must file a labor certification application with DOL, explaining the recruitment steps they took and how the beneficiary qualifies for the permanent role offered to them. The process was designed to protect the U.S. labor market, with the intent of preventing immigrant workers from displacing equally qualified U.S. workers.

For the past 18 years, employers had the option to submit their applications for labor certification (Form ETA-9089) through an electronic system known as PERM (Program Electronic Review Management), a system designed to reduce processing times. Unfortunately, that goal has been achieved. At the time of this post, PERM applications are often taking DOL approximately 8 to 10 months to process. The PERM system, which has received minimal upgrades or improvements since its creation in 2005, requires employers to register an account with DOL, where all of the employers’ labor certification applications are prepared, filed and stored. This system has its conveniences, but can also be tedious for attorneys who must manage separate attorney subaccounts for each of their clients.

In 2018, DOL began modernizing its outdated case-management systems, including the process for filing Labor Certification Applications (“LCAs”) for H-1B and other nonimmigrant visa petitions; various applications required for H-2A and H-2B visas for seasonal employment; and the process for filing Prevailing Wage Requests (the initial step in the PERM Labor Certification process). To that end, DOL created the Foreign Labor Application Gateway (“FLAG”), which provides employers and attorneys with the ability to electronically file those applications in a convenient, one-stop location. Earlier this year, DOL announced it will complete its implementation of Form ETA-9089 into FLAG, thereby replacing the current PERM electronic filing system. DOL currently expects this transition to be completed on June 1, 2023.

Along with the new implementation of ETA-9089 in FLAG, several changes were made to the Form ETA-9089 to reflect the modern labor market landscape. For example, the form now provides employers with the opportunity to affirm if a proposed worksite is on business premises or if the position allows for telecommuting/working remotely, and whether the required notice of filing was disseminated through electronic in-house media.

Further, new questions were added to the form to give employers the opportunity to explain various nuances in their application that often led to audits in the past. By providing an explanation upfront, employers may potentially avoid an audit all together, which could lead to faster processing times. However, some of the new questions may pose new challenges for employers. For instance, the new ETA-9089 now asks employers upfront if their specific job requirements “exceed the Specific Vocational Preparation (SVP) level assigned to the occupation,” and, if so, to explain the business necessity of their job requirements. Without adequate legal advice, employers may unintentionally raise “red flags” in their response to this question, as described in our earlier blog post on “Business Necessity” and how DOL calculates SVP levels.

The new ETA-9089 has also given rise to some uncertainty. At this time, it is unclear how attorneys will be able to input information from an existing Form ETA-9141 (Prevailing Wage Determination) created by a different preparer. The new system also appears to eliminate the need for an employer to register their own account for the labor certification process, which is convenient for attorneys as they no longer need to manage multiple accounts and can now manage their cases in a unified system, but it takes away an employer’s ability to see an overview of their past and present labor certifications.

If you have questions about this or related matters, please contact attorney Joshua D. Hofstetter at (212) 912-3581 and jhofstetter@harrisbeach.com, or the Harris Beach immigration team. Our Immigration Law Practice Group includes immigration attorneys that work across New York State in our Albany, Buffalo, Ithaca, Long Island, New York City, Rochester and Syracuse offices. Our immigration lawyers focus on strategies – including immigrant visas for permanent U.S. resident status and temporary visas for foreign nationals – to ensure that companies are able to hire, transfer, and retain the brightest and best non-U.S. talent.

This alert is not a substitute for advice of counsel on specific legal issues.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.

To more insights on immigration matters, see below:

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