A Quick Look into The Revised New Form ETA-9089
In order to streamline the program, enhance the employer experience, and accelerate the processing of labor certification applications, The U.S. Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) has announced plans to revise the permanent labor certification (PERM) process. The new Form ETA-9089 is intended to streamline and standardize information collection. OFLC will begin accepting the revised Form ETA-9089 on June 1, 2023.
As part of the PERM program’s transition to FLAG, OFLC is changing the content and format of the Form ETA-9089. The new form is meant to streamline and standardize information collection for employers, as well as introduce greater efficiency and transparency into the DOL’s review of applications.
By aligning Form ETA-9089 with the Form ETA-9141 prevailing wage determination in the FLAG system, the new form is better designed to collect data used across all parts of the PERM program.
A few fundamental changes to the Form ETA-9089 are outlined below.
Enhanced Integration: Form ETA-9089 and Prevailing Wage Determinations
The employer will no longer be entering the data manually about the job opportunity (job duties, minimum education, experience, and skill requirements). Instead, FLAG will directly link the Form ETA-9089 to a prevailing wage determination, allowing some responauto-populateopulate by FLAG. The job description and minimum requirements will also not be contained in the final Form ETA-9089, as OFLC will access them via the linked prevailing wage determination.
Section E: Job Opportunity and Wage Information
The employer may now describe any conditions about the wage rate to be paid not captured by the already existing wage determination, including “any bonuses, fringe benefits, subsidized housing or meals, or any other benefits associated with [the] job opportunity, as applicable.”
Section F: Area of Intended Employment Information
The information, which was previously gathered in Section H, related to where the work will be performed, has been expanded and is now found in Section F. This new section allows employers to elaborate on circumstances where the worksite is not known or could vary, including remote or roving employees.
Section G: Additional Job Opportunity Information and Other Requirements
To more closely comply with the regulation language, Section G includes additional clarifying questions concerning the job opportunity, including the potential for the employer to specify any alternative requirements.
Section H: Recruitment Information
Section I, Recruitment Information, is changed to the new Section H. The DOL rearranged parts to enable the agency to expedite data collecting and processing based on situations with different recruitment criteria.
Appendix A: Foreign Worker Information
Information about the foreign worker beneficiary and the worker’s qualifications are collected in Appendix A. The new Appendix A moves and consolidates information from sections J and K on the old form about the foreign worker. Appendix A gathers similar information to the old form, but provides additional and expanded fields for an employer to provide this information.
Appendix B: Additional Worksite Information
Appendix B gathers information on additional worksites and allows for identifying all places of employment, aligning with Appendix A of the prevailing wage determination.
Appendix C: Supplemental Information
Employers are required to complete Appendix C when “Yes” is marked for any of the questions 6 through 12 under Section G on the Form ETA-9089. Specifically, this Appendix is used to elaborate or further explain the business necessity of one or more requirements of the employer’s job opportunity under consideration for permanent labor certification. Appendix C provides two of these sections in print form, but with electronic filing, additional sections may be added as needed.
Final Determination: Permanent Employment Labor Certification Approval
This two-page electronic final determination provides the decisionrmination that “there are not sufficient workers who are able, willing, and qualified, and who will be available at the time of application for a visa and admission into the United States and place needed to fill the job opportunities for which certification is sought, and the permanent employment of the foreign worker will not adversely affect the wages and working conditions of workers in the United States similarly employed.”
