PERM UPDATE: DOL INTENDS TO REVISE EXISTING FORM ETA 9089
by Rabindra Singh
On July 20, 2020, the U.S. Department of Labor (DOL) Office of Foreign Labor Certification (OFLC) announced a 60-day public comment period on proposed revisions to existing Form ETA 9089. The deadline to submit comments is September 18, 2020.
Before highlighting and discussing revisions, it is important to point that the proposed Form ETA 9089 uses the terminology “foreign worker” in place of “Alien!” It took DOL no less than 15 years to even consider making this change. As such, no more extra-terrestrial Aliens on the Form ETA 9089s!
Chuckles aside, per DOL’s Supporting Statement the proposed Form ETA-9089 will help in reorganizing data collection into a series of appendices to provide greater clarity on program requirements, reduce overall reporting burden, facilitate better quality applications for government review, and promote greater efficiency in the issuance of labor certification decisions under the (Program Electronic Review Management) PERM program.
Though the size of the main form section has been reduced in length to 7 pages, four (4) new appendices have been added. Including appendices, the proposed form will have 16 pages as compared to 15 on the existing one.
Major changes to the current form include the following:
- Eliminating two sections of the form to streamline the application. Sections A and B of the current form are being deleted and/or incorporated into other sections. Sections of the proposed Form ETA-9089 are being renumbered, such that Sections C, D, and E of the current form will be Sections A, B, and C of the proposed form;
- Streamlining the application process for employers by removing information on the foreign worker to a separate appendix, which will allow to reuse applications that relate to similar job opportunities;
- Adding a new section on the Area of Intended Employment to allow the employer an opportunity to clarify information for potential roving employees and to ensure and verify that the worksite location is the same as the location noted on the Form ETA-9141;
- Eliminating duplicative fields related to prevailing wage information to those collected on the Form ETA-9141, Application for Prevailing Wage Determination (Form ETA-9141). Further, in order to leverage key information from the Form ETA-9141, the proposed on-line version of Form ETA-9089 under PERM system will automatically pre-populate all contact information from the Form ETA-9141, significantly reducing the time and burden for repeated online data entry;
- Reorganizing sections on recruitment to allow the agency to streamline the data collection and processing based on circumstances that have widely varying recruitment requirements; and
- Changing the name of the Employer Declaration section to Employer Labor Condition Statements on the proposed form to increase continuity of the form and to ensure the employer attests and acknowledges that the application submitted was filed in accordance to 20 CFR 656.10(c).
As mentioned earlier, the new Form ETA-9089 will contain following four (4) new appendices:
- Appendix A: Foreign Worker Information – The DOL is proposing new Appendix A by moving information from Sections D, J, and K on the current form to consolidate relevant information about the foreign worker and to resolve the issue of not having a space to list special skills, certifications, etc. This change will allow the DOL to better assess that the employer did not reject U.S. workers who applied for the position for lawful, job-related reasons. Filing the proposed form along with Appendix A will expand the information collection fields to allow the employer to provide more extensive information as to the foreign worker’s qualifications, education, skills, and abilities.
- Appendix B: Additional Worksite Information –Proposed new Appendix B will ensure that all places of employment are identified and work will not be performed in the geographic areas other than those the employer identified. In addition, the creation of this new appendix will allow it to align with Form ETA-9141, Appendix A, to account for variability in prevailing wages between different worksites.
- Appendix C: Supplemental Information – Appendix C will provide employer the opportunity to affirmatively provide additional information for determining whether the foreign worker’s qualifications meet those required for the job being offered by allowing employers to explain their specific need for special requirements not considered normal for the occupation in which the offered job is classified. This document will allow the employer additional space to provide explanations based on its responses to Section G on the proposed Form ETA-9089.
- Appendix D: Special Recruitment for College and University Teachers – Appendix D will allow the employer to provide additional recruitment information under 20 CFR 656.18. Specifically, Appendix D expands the fields to allow the employer an opportunity to provide more detailed information as to why the foreign worker was more qualified than the U.S. worker who applied for the job. Appendix D is comprised of fields located in Section I.B of the current form.
Note that in circumstances where it is not practical to collect supporting documentation using a standard OMB-approved appendix, the PERM system will permit an employer to upload documentation supporting the application in an acceptable digitized format (e.g., Adobe PDF, Microsoft Word, .TXT, etc.). An example of such an electronically uploaded document is provided by Question E.2 of the proposed form, where an employer is required to attach a completed Form ETA-9141 to abide by supervised recruitment requirements in accordance with 20 CFR 656.21.
Furthermore, the redesign of the current form and creation of different appendices will also allow the DOL to leverage technology to more easily automate processes and reduce burden. The current form is designed such that it must be completed as a whole for each individual application, thus requiring an applicant to repeatedly input information that may often be the same for an employer or for the agent or attorney completing an application on the employer’s behalf. By separating the form into more manageable sections and appendices, it will better allow for additional information that may be auto-populated by the system.
Some other notable proposed changes to the Form ETA-9089 include the following:
- Employer to provide ‘number of current employees on payroll in the area of intended employment’ in Section A of the Form.
- Attorneys to provide following details in Section C of the proposed Form: State Bar Number(s), State of highest court where attorney is in good standing; and Name of the highest court where attorney is in good standing. Note that an Attorney will be required to enter only one state bar number even if the attorney is licensed in more than one state.
- Employer needs to identify whether the attorney/agent representing the foreign worker is also contracted with the employer.
- The job opportunity and wage information data will be directly imported in from the Form ETA-9141using PWD tracking number. Using the PWD tracking number to link and pre-populate certain areas of the Form ETA-9089 will limits any modification between the approval of the PWD and the filing of the Form ETA-9089, thus reducing potential clerical errors that could result in a request for information, Audit Notification or Denial.
- In Section E, any additional condition about the offered wage can be mentioned. For example, “the wage rate does not account for future increases due to annual cost of living increases or allowances.” This section can also be used to describe any bonuses, fringe benefits, subsidized housing or meals, or any other benefits associated with the job opportunity, as applicable.
- The Section F ( Area of Intended Employment Information) on the proposed Form requires to identify whether the worksite location is business premises, employer’s private household (including live-in and domestic household workers), employee’s private residence (when work is performed directly out of the employee’s residence), or no one specific worksite address or physical location (if there is more than one worksite location or geographic area). Additionally, in Section F, the Metropolitan Statistical Area (MSA)/Occupational Employment Statistics (OES) name, area code and area title needs to be stated.
- Questions G.4, 4a. and 4b. provide the factors and employer’s attestation to Kellogg requirements, if applicable.
- Question H.12 – Are the job opportunity’s requirements normal for the occupation – on the existing Form ETA-9089 has been replaced on the new form by question G.9 – whether the employer’s job requirements exceed the Specific Vocational Preparation (SVP) level assigned to the occupation, as shown in the O*NET Job Zones. Note that Appendix C will allow the employer additional space to provide explanations based on its responses to Section G.9 on the Form ETA-9089 by allowing to explain their specific need for special requirements not considered normal for the occupation
Last but not the least; proposed Form ETA-9089 will result in elimination of the issuance of the paper-based employment certification decisions by creating a two-page Permanent Employment Certification Approval which would be issued electronically to the employer’s agent or attorney representative, if any, or otherwise directly to the employer, upon approval of their labor certification application.