On April 21, 2023, the Office of Foreign Labor Certification (OFLC) announced a timeline for the revised Form ETA-9089 case creation and case submission in the Foreign Labor Application Gateway (FLAG) system, with a starting date of May 16, 2023, but, as a result of feedback from stakeholders who informed that attorneys and agents who are newly hired will not have access to the job description and other job data filed by previous representatives, OFLC delayed the official date to June 1, 2023. According to OFLC, the defect in system was fixed in the interim, with the addition of a button in FLAG which may be used to open new files: “Case re-use? Would you like to re-use sections from another 9141 or start new?” There are two buttons to choose, “Start new” and “Re-use.” “Re-use” will provide availability to previously filed data, while “Start anew” will not. (This information is found in the User Guide) on the OFLC website “User Guide.”
As a result of this transition to this revised form, OFLC will no longer accept any new applications using the previous version of Form ETA-9089 via the legacy PERM Online System or by mail after May 31, 2023.
OFLC conducted two webinars on April 19 and April 20, 2023, to educate filers about the new form and the FLAG system filing process and provided the Public Stakeholder Webinar Overview of Form ETA-9089 available at the Department of Labor (DOL) website. Recordings of these webinars have also been made available.
The revised Form ETA-9089 consists of the Form ETA-9089 and 4 Appendixes: A-Foreign Worker Information, B-Additional Worksite Information, C-Supplemental Information, and D-Special Recruitment for College and University Teachers.
On April 27, 2023, OFLC posted unofficial watermarked versions of the new ETA-9089 form, its instructions, and appendices in addition to an unofficial version of the Final Determination Form to allow stakeholders to become familiar with the new forms. In that notice, OFLC also announced that it would post on its Forms page (https://www.dol.gov/agencies/eta/foreign-labor/forms) official, fillable, and 508 compatible .PDF versions of the Form ETA-9089 and its appendices on May 16, 2023, but as mentioned, the official start date was changed to June 1.
General Overview of the Revised Form ETA-9089 and Instructions
In reviewing the 26-page of instructions for the revised ETA-9089, the form, its four appendices A-D, and the form used for Final Determinations, longtime foreign labor certification practitioners will note the following:
Like the pre-PERM Form ETA-750, Parts A and B, the revised PERM application separates the job offer data from the foreign worker data, with the latter appearing only in Appendix A. Form 9089 is now focused on the employer, the attorney or agent, worksite information about the job opportunity, additional specifics about the job offer, and recruitment.
In a major break with past forms for application for labor certification, on the revised form 9089, there is no place to list the job opportunity data including the job title and minimum requirements. Instead, the instructions to the revised form state that information about the job opportunity and wages will be imported directly from the Form ETA-9141, Application for Prevailing Wage Determination (PWD), associated with the PWD tracking number.
Because of this direct importation of data from the 9141, the law firm or agent preparing the Form ETA-9089 may either have the PWD in hand or click “Re-use” when starting a new application on-line to assess the match of the job offer with the qualifications of the foreign worker. On May 31, 2023, FLAG issued an Addendum to the User Guide that gives instructions on how to link a PWD that is not in your FLAG account to your ETA-9089 application. This issue arose when the new ETA 9089 form was posted and resolved by FLAG upon request from stakeholders.
The new forms and the instructions are more detailed than the previous PERM application. Questions on the revised forms are broken down into component parts, each with an item number and box. There are new questions that did not appear on the previous 9089. Further, the instructions are extensive, comprising twenty-six pages in contrast to the instructions for the 9089 form, numbering just eleven pages.
A new feature of the revised instructions are multiple references, beyond introductory comments, to the regulations at 20 CFR 656. Instructions for the revised form contain eighteen such references; the instructions for the previous 9089 contained only one. Also, interestingly, the new instructions refer the filer to the Board of Alien Labor Certification (BALCA) decision in the Matter of Francis Kellogg, 1994 INA 00465 (Fe. 2, 1998) (en banc) for more information on the form’s questions related to the employer’s willingness to accept any suitable combination of education, experience, or training. Kellogg introduces the possibility that the language, a/k/a the Magic Language as it is colloquially known, while only intended to express the employer’s good faith to consider foreign workers qualified by means of alternative requirements that themselves are not tailored to the alien, may be considered to supersede the employer’s minimum requirements stated elsewhere on the form. This dilemma, thus, continues to obfuscate the distinction between 2nd and 3rd preference I-140 petitions, and even vis-à-vis the ‘other worker’ category.
The instructions provide guidance for applications submitted by mail. In addition, the instructions distinguish between those items on the revised form marked with an asterisk (*) and those marked with a section (§) symbol. The former items are required and must be completed, while the latter are conditional and must be completed if applicable. The non-electronic filer must complete all items/fields. One may take note that OFLC has previously stated that applications filed by mail are susceptible to audits, perhaps due to questions regarding the employer’s capability to offer a bona fide job opportunity.
According to instructions for the revised form, the employer will no longer engage in data entry of any information about the job opportunity and the wages. The instructions state that the information will be imported directly from the PWD. However, the instructions do not make clear the destination of the imported information. DOL’s presentation about the revised form on its website and entitled OFLC Stakeholder Webinar on New Form ETA 9089 Presentation April 2023 provides the following clarification:
All documents associated with the case will go into the “Data Hub” where USCIS and DOS have direct live access to documents via VIBE system (Validation Instrument for Business Enterprises). In this way agencies will have access to all relevant information pertaining to the application.
Based on the existence of the “Data Hub,” which is not visible to stakeholders, and the 2-page Final Determination Form newly issued by DOL, the employer will no longer receive a hard copy of an approved Form ETA-9089 to file with USCIS or DOS. Instead, those agencies have live access to all the documentation about the job offer and wages. The 2-page Final Determination Form may serve as the only hard evidence of the certification. On the other hand, the Final Determination form itself refers to the requirement that certified 9089 must be signed immediately upon receipt from DOL, implying that a hard copy of the Form 9089 will be delivered to the employer. This remains to be seen.
Overview of Revised Form ETA-9089-Section by Section
Section A: Employer Information
While like the information gathered about the employer in the previous 9089, this section now has seventeen questions instead of nine. The instructions clarify that the place of business must be a physical location and not a Post Office Box and underscore the fact that all employers, including private households, must obtain a Federal Employer Identification Number (FEIN) before completing the application.
In this section, the previous form asked for the total number of employees currently employed by the employer. However, the revised form poses the question; “Number of current employees on payroll in the area of intended employment.”
Section B: Employer Point of Contact Information
The revised form states in small print under the title of this section: “The information contained in this Section must be that of an employee of the employer who is authorized to act on behalf of the employer in labor certification matters. The information in this Section must be different from the agent or attorney information listed in Section C, except when the attorney is an employee of the employer.” The instructions further elaborate on these requirements, explaining that the employer point of contact holds a position that authorizes them to provide information and supporting documentation concerning the Application for Permanent Employment Certification and should be an individual most familiar with the content of the application and circumstances of the permanent employment offered in the application.
Regarding item B.14 on the revised form, the instructions caution that the email address entered in this field must be the same as the one regularly used by the employer’s point of contact for its business operations and must be capable of sending and receiving electronic communications from the Department of Labor with respect to the application’s processing.
Section C: Attorney or Agent Information (If Applicable)
Here again the revised form has elaborated the information required about the attorney or agent, with the number of questions in this section increasing to nineteen, up from seven on the previous form. Firstly, the filer must specify the type of representation for the employer; the choices are Attorney, Agent, or None.
The business email address entered in item C.14 must be the one used by the attorney/agent’s point of contact to send and receive electronic communications from the Department of Labor for the application’s processing.
Of note, if an Attorney is indicated, then items C.17-19 must be completed with information about the attorney’s state bar number and the state of the highest court and the name of the highest state court where the attorney is in good standing.
Section D: Foreign Worker Information
This section consists of two questions only. Item D.1 asks if a completed Appendix A identifying the foreign worker is attached to the Form ETA-9089. The employer must mark “Yes” to obtain certification; an answer of “No” to this item will result in denial.
The second question is a new one: “Has the employer contracted with an agent or attorney that also represents the foreign worker covered by this application?” The employer must answer “Yes” or “No.”
Section E: Job Opportunity and Wage Information
In this section, the employer will enter the valid PWD case number issued by the Department of Labor to identify the job opportunity and prevailing wage(s) covered by the application. By doing this, the job opportunity and wage information data will be directly imported from the Form ETA-9141 associated with the PWD tracking number. The instructions explain the by using the PWD tracking number to link and pre-populate certain areas of the Form ETA-9089, OFLC enhances the application submissions and review process by reducing the amount of time and potential data entry errors associated with manually entering data into fields that historically have not been linked.
Further, if the PWD includes two wages that may occur when wages differ if based on the minimum requirements or the alternative requirements, then the higher of the two wages as the determined prevailing wage must be used in Section E of Form ETA-9089. In this section item E.5 provides for the inclusion of additional conditions about the offered wage such as descriptions of any bonuses, fringe benefits, subsidized housing or meals, or a notation relating to future increases due to annual cost of living increases or allowances.
What is not clear in the instructions is where the job opportunity and wage information will appear on the ETA Form-9089. There are no apparent fields on the form for the information to populate. However, the webinar presentation explained that all documents associated with the application will go into a “Data Hub” that can be accessed by USCIS and DOS. We conclude that the job data does not appear on the revised form 9089 but will be available to USCIS and DOS on the “Data Hub.”
In the General Overview above, it was noted that an issue has arisen regarding obtaining the PWD if the 9089 preparer did not also prepare the prevailing wage request.
In addition, there is an issue about stating a job title of an acceptable alternate occupation. When the job offer information is imported from the 9141 into the Form 9089, data about the Alternative Job Requirements will be imported as well. However, in section (F.c) of Form 9141, while it is possible to state that alternate sets of Education, Training, and/or Experience are acceptable (item F.c.1), and it is possible to make statements about those requirements, there is no opportunity to identify the job title of an acceptable alternate occupation. This last information was provided in the retiring 9089 form in item H.10-B.
Section F: Area of Intended Employment Information
The instructions caution: “[i]t is important for the employer to define the area of intended employment with as much geographic specificity as possible by identifying every worksite location where work will be performed.” Whereas the previous ETA-9089 had a single item, H.1, asking: “Primary worksite (where work will be performed),” the current form includes three subsections asking for Worksite Information (F.a), Additional Worksites (F.b), and Other Definable Geographic Areas (F.c), and, when additional worksites are indicated in F.b, then the employer must attach Appendix B entitled “Additional Worksite Information.”
In contrast to the instructions for the retiring 9089 form, where the guidance for answering the single worksite question consisted of a single sentence, current instructions for the completion of Section F on the revised form occupy a full page and one-quarter in addition to instructions for the completion of Appendix B.
Section G: Additional Job Opportunity Information and Other Requirements
Section G consists of questions that are familiar to PERM practitioners. However, two of the first five questions in this section are broken out with more details than were present in the previous 9089 form.
Item G.4 asks if the foreign worker is currently working for the employer submitting the application. A response of “Yes” thereafter requires the employer to indicate in item G.4a whether the foreign worker only qualifies for the job opportunity by virtue of the employer’s alternative requirements identified in the PWD. A “Yes” response to that question leads to item G.4b asking if the employer is willing to accept any suitable combination oof education, experience, or training. It is at this point in the application that the instructions refer the filer to Matter of Kellogg (see above).
Item G.5 asks if the employer is relying solely on the experience that the foreign worker obtained while working for employer, including as a contract worker, to qualify them for the application’s job opportunity. An answer of “Yes” to this question triggers an additional two questions about whether the qualifying experience with the employer is comparable to the job opportunity. Of note, the revised form’s instructions define “substantially comparable positions” and caution that if the employer gives a “Yes” response to item G5, they must be prepared to provide documentation upon request from the Certifying Officer to demonstrate why it is no longer feasible to train a U.S. worker to qualify for the position.
Item G.5b asks whether the employer paid for any of the foreign worker’s education or training necessary to satisfy any of the employer’s requirement of the job offered in the PWD. This question is nearly identical to question J.22 in the previous 9089 form.
Items G.6-12 on the revised form, including questions about a foreign language requirement and a combination of occupations, were all on the previous form in sections H and I, with the current item G.9 regarding SVP having been a more specific version of the H.12 item on the previous form. However, for these various questions collected on the new form as items G.6-12, a response of “Yes” to any one of them requires an explanation justifying that response on Appendix C “Supplemental Information.”
Section H: Recruitment Information
This section has five subsections, including Supervised Recruitment, Occupation Type, Professional/Non-Professional Recruitment information, Additional Recruitment Requirements for Professional Occupations, and Notice of Posting.
As to Occupation Type, the filer must choose among specific options: professional, non-professional, college or university teacher, Schedule A or sheepherder occupation, or professional athlete. The section provides the ability of the filer for a college or university teacher to skip the sections on recruitment information and requirements and go directly to Appendix D, “Special Recruitment for College and University Teachers.” The instructions remind the filer that Schedule A occupations and sheepherder applications must be submitted directly to USCIS.
What is new in this Section is the single question about whether the employer is required to undergo supervised recruitment. The expanded questions about the Notice of Posting are also new in this revised form. In the previous 9089 form, there were two questions on this issue, but on the revised form this has increased to six questions, items H.e.1a to H1f. The revised ETA-9089 asks about a Bargaining Representative and when there is none and presents four scenarios for posting plus an option if the employer did not post the notice of filing. The employer must mark all that apply.
Section I: Employer Labor Condition Statements
This section, though largely comparable in content to Section N, “Employer Declaration,” on the previous Form ETA-9089, differs in two major respects. First, the Employer Labor Condition Statements are not written in the first person as they appeared on the previous form where they were immediately followed by the employer’s signature block. Instead, on the new form, the employer condition statements precede a certification under penalty of perjury attesting to knowledge of compliance with the applicable Labor Condition Statements as listed, with no signature block apparent.
Further, in this Section, Condition (1) regarding the offered wage is much more detailed than the comparable item 1 in section N of the previous form. The Employer Labor Condition Statement (1) as it appears on the revised form is more expansive than the previous attestation that the offered wage equals or exceeds the prevailing wage and that the employer will pay at least the prevailing wage. On the revised form, Employer Labor Condition Statement (1) reads: “ The offered wage equals or exceed the prevailing wage determined pursuant to 20 CFR 656.40 and 656.41, and the wage the employer will pay to the foreign worker to begin work will equal or exceed the prevailing wage that is applicable at the time the foreign worker begins work or from the time the foreign worker is admitted to take up the certified employment.” Hence the new form emphasizes that the employer is bound to pay the prevailing wage in force at the time that the foreign worker begins the certified employment.
Section J: Preparer
This section is to be completed only if the preparer of the application is a person other than the one identified in either Section B (employer point of contact) or Section C (attorney or agent) of the application. This differs significantly from the previous form where, in Section M, “Declaration of Preparer,” it was necessary to state whether the employer had completed the application. A response of “No” was followed by the name, contact information, and signature of the Preparer.
Appendix A: Foreign Worker Information
Appendix A must be submitted with Form ETA-9089 for the application to be considered complete. The appendix has five sections:
A. Foreign Worker Contact Information
B. Foreign Worker Education
C. Foreign Worker Training Qualifications
D. Foreign Worker Training Qualifications
E. Foreign Worker Experience
Users of the previous Form ETA-9089 should find this Appendix helpful. The previous form did not provide fields for training and licenses, so questions arose regarding the placement of such data in Section K. With the more detailed format given in Appendix A, filers should find it easier to present the credentials of the foreign worker.
The Foreign Worker Education section collects five sets of diplomas/degrees with questions about the degree, the major field of study, the name of the institution, and date attained. All information about education, including for paper filings, must be presented in the format given. Training, Certifications, and/or License Information can be presented in Section C, and Section D is required if there are special skills, abilities, and/or proficiencies required for the job opportunity. On Form 9141, item F.b.5 in the Minimum Job Requirements, the employer had the opportunity to indicate whether special skills are required for the job opportunity. Therefore, in section D of Appendix A, the employer can describe those specific skills, abilities, and/or proficiencies and indicate where the foreign worker acquired them. Note that no dates regarding the acquisition of those skills is required in Section D of Appendix A because, as the webinar presentation explains, the qualifications should match up with an employer, institution, school and/or training provider included in other sections of Appendix A.
The instructions for Appendix A, Section E, Foreign Worker Work Experience, clarifies that such experience may include, but is not limited to, paid and unpaid experience, internships, apprenticeships, etc. Of interest, those instructions caution the filer not to include contact information for the employer or supervisor where the experience was gained. By contrast, Section K of the previous form had requested that data in the job details for each job listed in the foreign worker’s experience. The revised form asks for the same data about each Work Experience as appeared in Section K of the previous 9089 form.
Appendix B: Additional Worksite Information
The Appendix will collect five sections of additional worksite information, including MSA/OES Area Code and the MSA Name/OES Area Title.
Appendix C: Supplemental Information
This Appendix must be used when “Yes” is marked in any of the questions 6 through 12 in Section G on the Form ETA-9089. The Appendix is used to further explain issues such as business necessity, credential evaluation, or layoff information, if applicable.
Appendix D: Special Recruitment for College and University Teachers
This Appendix collects information only if recruitment for the employer’s job opportunities is for a college or university teacher and the candidate was selected using the special recruitment process in accordance with 20 CFR 656.18.
Final Determination Form: Permanent Employment Certification Approval
This form sets out the name of the employer, the foreign worker, the job title, SOC code and occupational title as well as the filing date, determination date, and expiration date. It is signed electronically by the Department of Labor, OFLC.
There are three declarations on the Final Determination Form: that of the Foreign Worker, the Attorney or Agent, if any, and the Employer. Each must declare under penalty of perjury to the accuracy of the information provided in the application. The foreign worker further declares that they did not participate in any labor certification activities. The attorney certifies that they have provided to the employer the entire Form ETA-9089, appendices, and documentation and that such information is true and accurate. The employer designates the attorney or agent named in the form to represent them for the purpose of labor certification. Each declaration is signed and dated by the declarant.
The revised form’s instructions conclude by advising that:
A submitted Form ETA-9089 resulting in certification MUST be signed immediately upon receipt from DOL before it can be submitted to USCIS for final processing When the Department enables the electronic filing system to receive electronic signatures, the employer, foreign worker, attorney, agent, and preparer, as appropriate, will be required to sign the labor certification electronically prior to submission.
Conclusion: The Issue of Information Directly Imported from 9141 to Data Hub
Interesting details have emerged regarding data that will no longer appear on Form 9089 relating to the job offer. Numerous items such as the Job Title, Job Duties, Job Supervision, SOC Codes of persons to be supervised, the entire menu of Minimum Job Requirements and Alternate Job Requirements, and Conditions of Employment such as Travel, appear on Form 9141 and, according to OFLC, as explained in the webinar presentation, will be directly imported from the Form 9141 into a “Data Hub” where USCIS and DOS have direct live access to documents via the VIBE system (Validation Instrument for Business Enterprises). Employers will activate the data transfer by inputting the PWD Tracking Number in Section E of the revised ETA Form- 9089. As Stakeholders do not have access to the “Data Hub,” they must be careful to consult back to Form 9141 together with Form 9089 and the four Appendices, A-D, as they continue to prepare related fields on Form 9089 (such as foreign worker qualifications in Appendix A, because the corresponding job description and requirements will not be visible on Form 9089 unless the “Re-use” option is chosen when a new 9089 form is initiated.
Prepared for the PERM Center by Therese M. Stewart, Ed.D, J.D., Attorney at Law
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