US Department of Labor Proposes Changes to the PERM Labor Certification Application Process

By: Mishita Jethi

The US Department of Labor has proposed changes to permanent labor certification (PERM) application forms, instructions, and other materials that are collected during the employment-based permanent residence (green card) sponsorship process. Most of the proposed changes are to Form ETA-9089, Application for Permanent Employment Certification.

Proposed Revisions to Form ETA-9089

Some of the proposed changes to Form ETA-9089 include:

• Eliminating the paper-based employment certifications and replacing it with a two-page Form ETA-9089 Final Determination to be issued electronically
• Moving information about the foreign worker to a separate part of the application, so that employers can reuse applications for similar job roles
• Adding a new section in the Area of Intended Employment for employers to clarify information about roving employees and verify worksite locations
• Removing the section for minimum position requirements (including education, experience, and skill set) since it already appears in the prevailing wage determination Form ETA 9141
• Adding a question for employers to explain the role’s business necessity, in case the employer’s minimum job requirements exceed the O*Net job zones specific vocational preparation (SVP) level
• Allowing Form ETA 9089 Case Preparation Module to automatically pre-populate most fields from the Form ETA 9141 to reduce data entry time

OFLC will also launch a revised prevailing wage request form (Form ETA 9141). Once the updated form is ready, OFLC will start to issue two separate prevailing wages to employers who use two alternate sets of job requirements for the same position. The higher of the two prevailing wages will be used for recruitment and Form ETA 9089.

The changes aim to make the PERM review and decision-making process more efficient for the Office of Foreign Labor Certification (OFLC), reduce the amount of time needed for employers to complete the form, and make PERM regulations clearer to employers. Proposed revisions will be open for comments through September 18, 2020 before they are finalized.

OFLC will also migrate to a new website domain. Old webpage links will redirect to the new domain.

Conclusion

The goal of the new Executive Order is to prevent outsourcing of federal work. It requires federal agencies to give preference to US workers for contract positions in addition to permanent positions.

Our team of experienced attorneys will closely watch the outcomes of the Executive Order and provide updated analysis as soon as more information is available.