United States: New FLAG-Based PERM Application Form Takes Effect June 1

PERM applications in the new FLAG system must be completed on the new version of the Form ETA 9089, “Application for Permanent Employment Certification.” The new version represents a significant restructuring and revision of the form, although the substantive rules governing PERM adjudications remain unchanged.

As a result of the revisions to the PERM application form, employers and sponsored foreign workers may be asked to provide more detailed information in several key areas, including:

• additional worksites or roving or telecommuting requirements;
• the number of company employees in the area of intended employment;
• greater detail on the sponsored foreign national’s qualifications; and
• business necessity justification for certain job requirements that DOL may consider beyond those normally required for the occupation.

These and other new form requirements are likely to increase the time it takes to prepare and review PERM applications before submission.

In addition, the revised ETA 9089 form will incorporate by reference the job information contained in the required Prevailing Wage Determination request that must be submitted and processed by DOL before the PERM application can be filed. This change could complicate the ability to modify job information that may require updating or clarification at the PERM application filing stage, and additional guidance from DOL may be required to address this issue.

According to the FLAG portal, government processing time for unaudited PERM cases is currently posted at approximately nine months, and processing time for audited cases is posted at about one year. Implementation of the new FLAG-based PERM application process is not anticipated to result in improved processing times.

DOL has indicated that it will not begin processing new PERM applications filed through the FLAG system until it has completed processing of pipeline cases pending in the legacy PERM portal. As such, applications filed using the new form may take longer to process than usual, and are not expected to be adjudicated until next year.

Fragomen will continue to monitor DOL’s implementation of the new PERM application system and provide updates as developments occur.