Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
In April 2023, the long-anticipated new and modernized PERM Form 9089 was introduced to the public by the U.S. Department of Labor, Foreign Labor Certification (FLC) unit. The PERM process permits an employer to hire a foreign worker to work permanently in the United States. The FLC unit held two webinars on April 19 and April 20 to provide information on the changes to the form and instructions on how to fill out the new PERM applications. The recordings of these webinars are available on the DOL’s webpage.
Petitioners and their attorneys can start filing PERM Applications using the new forms on June 1, 2023, through the Foreign Labor Application Gateway (FLAG) portal, which is also used for filing Labor Condition Applications (LCA) for H-1B petitions and wage requests for PERM, H-2A, H-2B and CW-1 petitions. The sunset date for filing PERM Applications through the legacy PERM portal system is May 31, 2023.
Some notable features and modifications in the new PERM form and filing through the FLAG include filtering of the Prevailing Wage Determination in the Form 9089 for the specific position,1 incorporating the required “magic language”2 through a specific question prompt, and requiring business necessity to be submitted when responses to certain questions pertaining to the PERM position are in the affirmative. One such question is whether the requirements exceed the specific vocational preparation (SVP) assigned to the position. The SVP level is the time required to acquire the education, experience and/or training to learn the skills needed for average performance for a specific job. Other questions where business necessity is required are where the PERM position requires a foreign language or a combination of occupations.
The modernization of the PERM filing system was long overdue, and stakeholders are hopeful that this will mitigate the lengthy adjudication times of the PERM applications resulting in uncertain predicaments for many foreign national employees at the very end of their various non-immigrant status.
1 The prevailing wage determination (PWD) is the salary for the position offered and is issued by the National Prevailing Wage Center. Under the prior process, the PWD information had to be manually entered on the PERM form. Under the new process, the PWD information for the specific position is automatically populated after entering the reference number.
2 The “magic language” is a set of phrases that needed to be entered on the old PERM form when the beneficiary (foreign national) of the PERM application qualifies through an alternative requirement for the job position. Under the old system, the language had to be entered manually. Under the new system, there is a specific question asking whether the beneficiary qualifies via alternative requirements.