The U.S. Department of Labor has implemented an updated FLAG-based version of ETA Form 9089. While the implementation brings some streamlined features, there are also lingering questions about how the DOL will manage the processing of legacy PERMs and new cases filed in FLAG.
By Donald W. Parker, Immigration Attorney
The U.S. Department of Labor’s Office for Foreign Labor Certification (OFLC) has completed a lengthy process of updating the Form ETA 9089 PERM Application and transitioning it to the Department of Labor’s Foreign Labor Application Gateway (FLAG) system. Beginning June 1, 2023, all PERM Applications must be submitted on the new Form ETA 9089 through the FLAG system.
As background, the PERM Application is a required stage in certain employer-sponsored permanent residency processes. It requires that the employer conduct a test of the labor market to determine that there are no U.S. workers who are interested In being considered for the sponsored position and who meet the requirements of that position. In the PERM Application process, the employer must first obtain a prevailing wage determination from the Department of Labor, then conduct the labor market test and finally submit the PERM Application to the Department of Labor, confirming that the labor market test was done properly and that no qualified U.S. workers applied for the sponsored position.
Employers have used the FLAG system to prepare and submit their prevailing wage requests for several years. However, the PERM Application has been prepared and submitted using a different, legacy system. The new PERM Application, which is now prepared and submitted using the FLAG system, allows the Department of Labor to streamline the application process by automatically incorporating information from the prevailing wage determination related to the sponsored position – job duties, education, experience and skills requirements — into the Form ETA 9089.
In addition to this streamlined feature, the new Form ETA 9089 requires the employer to provide more detailed information in several areas including:
- The sponsored foreign national’s qualifications for the sponsored position;
- Situations in which the sponsored position involves traveling to an additional worksite or telecommuting ; and
- Situations where the sponsored position’s listed requirements exceed Department of Labor minimum standards, requiring that the employer justify the requirements based on business necessity.
The introduction of the new Form ETA 9089 has been rocky. Originally scheduled for release in mid-May, the Department of Labor had to push back the effective date of the new Form to June 1st. The Department of Labor has stated that cases filed under the new system will not be processed until all of the cases filed under the old system have been completed. Since processing times for PERM Applications under the old system are running at an average of 9 to 10 months, it will clearly be a while before we see how the U.S. Department Labor interprets components of the new Form ETA 9089 and adjudicates cases filed using the new form.
We will provide up-dates on processing of PERM Applications under the legacy system and news, as we receive it about the operation of the new PERM Application system.
Immigration at Work 