01 Jun 2023

United States

PERM Labor Certification Applications Must be Filed Online on New Form ETA-9089 Starting June 1, 2023; Delays in Processing New PERM Applications May Result; OFLC Allows Linkage to Form ETA-9089 of a Prevailing Wage Determination Filed by a Different Entity

Starting June 1, 2023, Applications for Permanent Labor Certification must be filed online with the Department of Labor (DOL) through the Foreign Labor Application Gateway (FLAG) using the new version of Form ETA-9089, Application for Permanent Employment Certification that was published in April of this year.  Please see our April 26, 2023 Alert announcing this change.  The DOL stopped accepting new PERM applications submitted via the legacy PERM system on May 31, 2023, at 6:59 p.m. Eastern Standard Time.  OFLC will not accept the previous version of Form ETA 9089 after May 31, 2023, whether submitted electronically or by mail.

Unconfirmed reports indicate that the DOL does not plan to adjudicate any PERM labor certification applications filed on or after June 1 until it has completed its adjudication of all PERM applications that were filed under the legacy PERM portal.  If these reports are accurate, it is unlikely that any PERM applications filed through the FLAG portal will be processed until early 2024.

Separately, the DOL’s Office of Foreign Labor Certification (OFLC) announced  that there is now an option to link a prevailing wage determination to a PERM application in circumstances when the prevailing wage determination is in a different account than the account from which the 9089 is being drafted, and has added a link on the Form ETA-9141 Case Lookup screen that states “Look up PWD Out-of-Network.”  This new link allows a user to search by prevailing wage determination number to locate a matching record.  This is a welcome development and resolves a potential problem on the new 9089 that would have resulted from one firm filing Form ETA-9141, and another firm filing Form ETA-9089.  Previously, only the first firm could file Form ETA-9089 through the FLAG portal.  Unfortunately, as of today, June 1, this link is not yet operational.  OFLC has not yet issued any guidance on when this problem will be resolved, but we anticipate OFLC will address this issue in the coming days.

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