The U.S. Department of Labor (USDOL) has announced the implementation of a new version of the Form ETA-9089, which will soon need be filed on a different online platform. The current Form ETA-9089 and filing platform may be used through May 15, 2023, for the filing of applications in progress. 

Beginning May 16, PERM applications may only be filed with the new version of the Form ETA-9089 as completed through the USDOL Foreign Labor Application Gateway (FLAG) system). While the overall steps in the labor certification process remain the same, there are some significant changes in the information required in the form that will impact the way applications are prepared and filed. 

Many of the questions USDOL has asked of employers in the past by way of a post-filing audit will now be asked on the new Form ETA-9089, meaning the information must be included with the initial filing of the application. Most notably, information justifying the business necessity of requirements USDOL considers outside the norm for the occupational classification must be included with the initial filing. Examples include: 

• Excessive degree/education requirement – For most engineer positions, USDOL considers a bachelor’s degree to be the normal requirement for the occupational classification. A master’s degree requirement would require an explanation of the business necessity for that requirement at the time of filing. 

• Excessive experience requirements – For many professional positions including Engineers, Accountants, Software Developers, and most other IT professionals, USDOL considers one to four years of work experience to be a normal experience requirement for the occupational classification. A requirement of five years of experience or more for these occupations would generally require a business necessity justification at the time of filing. 

• Foreign language requirements – By regulation, employers may not require a foreign language for an offered position unless there is a business necessity. The new Form ETA-9089 requires a business necessity justification for a foreign language requirement at the time of filing. 

• Unusual special requirements – Unusual requirements such as licenses, certifications, or other credentials USDOL does not consider “normal” for the occupational classification will require close evaluation at the earliest stages of the PERM labor certification process to determine if they fall within the realm of what USDOL considers “normal” for the occupation or if a business necessity justification will be required at the time of filing. 

To date, USDOL has raised these issues in a post-filing audit or not at all. Now, they will be a staple of the routine PERM case preparation and filing process. Because employers frequently require a higher-level degree or more years of experience than USDOL considers “normal” for the assigned occupational classification, requiring employers and their immigration counsel to address these issues at the time of filing will have a broad impact. Substantial additional activity will be required in most cases to prepare for answering these types of “audit” questions as part of the original filing. Effectively, most PERM filings will include a “mini audit” at the time of filing. 

Although the business necessity explanation is required at the outset, it currently appears that USDOL will not require uploading of supporting documentation and evidence unless and until they issue a formal audit of the PERM application. This does not mean the employer should put off collection of the documentation and evidence in advance to have it on hand at the time of filing. Employers should absolutely collect these items in advance. Should USDOL select an application for audit, the employer has only 30 days to provide the required documentation and work with immigration counsel to finalize business necessity arguments for upload with supporting documentation. 

The new Form ETA-9089 also includes questions that the previous version of the form did not. For example, employers will now have to specify the number of employees on the employer’s payroll in the geographic area of intended employment for the offered position. This information may be used in the event of an audit to determine if proper notice was given to the workforce in the geographic area or perhaps for other reasons related to the bona fides of the job offer.  Determining this information may be more difficult for employers whose workforce largely telecommutes. Additional activity can be expected to ensure accuracy of the information provided. 

Because the new form and system require more information and an even greater attention to detail in all facets of the application, both in advance of filing and at the time of filing, employers should prepare for additional activity with respect to supporting the business necessity of the job requirements. With additional activity up front, and careful explanation of the job and its requirements when filing the PERM application, it may be possible to avoid some audits that are based on the business necessity of the job requirements. Overall, a reduction in audits could positively impact DOL adjudication times and result in more rapid decisions than the current eight to 12 months. On the other hand, hastily prepared or incomplete responses at the time of filing could simply provide additional fodder for an audit and further bog down an already backlogged system. Employers should be prepared to work even more closely with their immigration attorneys to assure compliance throughout the labor certification process, meet the new information demands at the time of filing, and ultimately be prepared if USDOL requires a formal post-filing audit. 

 Foster LLP will continue to track updates and news related to new immigration policies and programs and will make future updates via the firm’s website at www.fosterglobal.com.