11 May 2023

United States

Introduction of New ETA 9089 PERM Labor Certification Application Form in FLAG System Postponed Until June 1, 2023

The U.S. Department of Labor’s (DOL’s) Office of Foreign Labor Certification (OFLC) announced today that the introduction of a new Form ETA 9089 for the filing of PERM labor certification applications, which was scheduled to take effect on May 16, 2023  has been postponed until June 1, 2023 (see our prior Alert on this here).  This new form will now become mandatory on June 1, 2023 and all PERM applications as of this date will have to be filed through the Foreign Labor Application Gateway (FLAG) online system.  OFLC will no longer accept any new PERM applications submitted via the legacy PERM online system after May 31, 2023, at 6:59 pm Eastern Standard Time. OFLC will not accept the previous version of Form ETA 9089 or Form ETA 9141 (the prevailing wage request), after May 31, 2023, whether submitted electronically or by mail.

Although the OFLC did not indicate its reason for this welcome postponement, the announcement suggests that it may be, at least in part, due to questions raised by stakeholders through channels like the American Immigration Lawyers Association (AILA) about the new form and the complexities that it contains. These concerns may have caused the agency to take a step back to consider these issues.  Such complexities include confusing questions about dual representation and familial relationships, the inability of counsel to file an ETA 9089 on behalf of a client if the underlying Form 9141 had been filed by different counsel (with the only recourse being the physical mailing of the application), and a limited number of options to describe the worksites at which the beneficiary will work, especially given common telecommuting and hybrid work arrangements.

The lack of guidance proffered by the agency about these complexities since the new ETA 9089 form was published suggests that the OFLC may not have anticipated or adequately considered the problems that may be encountered by users of the form.

As noted in a prior T&S Alert, it was not clear why DOL provided such a short initial time frame for the implementation of this new form and filing process, given the fact that stakeholders will have to overhaul their entire application preparation procedures to comply with the new process. However, the OFLC will hopefully spend the period between now and June 1 considering, digesting, and answering the many questions about the new ETA 9089 form and filing system that have been posed by stakeholders in the PERM labor certification program and possibly revising the content of the form to provide clarity.

The stated purpose of the new ETA 9089 form is to “streamline” the PERM application filing process and the new form appears to now capture essential information that was missing on the previous version of the form.  At this time, stakeholders continue to await additional OFLC guidance on many unresolved issues before use of this new form becomes mandatory on June 1.  T&S will continue to provide updates on the development of this matter as they arise.

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Alan Tafapolsky


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