This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Loan Huynh, Fredrikson Immigration Department Chair, is a member.
On May 26, 2023, the Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) announced Form ETA 9089 case submission for PERM in the Foreign Labor Application Gateway (FLAG) and related technical guidance (scroll to May 26, 2023).
OFLC had previously announced a delay to the date on which it would transition PERM submission and processing to FLAG and concurrently implement the revised Form ETA 9089 (now June 1, 2023). In response to stakeholder requests, OFLC used the delay to work with DOL’s Office of the Chief Information Officer to provide filers the option to link prevailing wage determinations to a PERM application where users no longer have access to the FLAG account from which the prevailing wage request was submitted. Information and guidance on how to use this option is in the addendum to the Form ETA 9089 User Guide on the PERM program page on FLAG.
OFLC noted that filers have been able to use FLAG’s case creation functionality in the PERM module since April 24, 2023. OFLC has received and reviewed numerous help desk inquiries about filing the revised version of Form ETA 9089. OFLC reminded users that it does not provide case-specific guidance on filing procedures and said it “strongly encourages all applicants to review the PERM regulations, the frequently asked questions and the instructions to the Form ETA 9089 for general guidance. OFLC will continue to review received help desk inquiries and will provide additional guidance in the form of new FAQs.”
OFLC said one question has been so common that OFLC believes it should be addressed before full deployment of the PERM module in FLAG “to prevent confusion when filers try to submit PERM applications”:
Q: I’m filling out work experience in Appendix A.E - Foreign Worker Work Experience. What should I enter for the “end date” when the worker is presently working for the employer?
A: You can enter the current month and year for when you’re completing the application. Make sure to select “Yes” to question 1.j. Present.
OFLC added the notice below that users see when they log into their PERM accounts:
Effective May 31, 2023, 7 PM Eastern Standard Time, the Office of Foreign Labor Certification will not accept the previous version of Form ETA-9089 electronically or submitted by non-electronic methods (mail, email, or fax). All new versions of Form ETA-9089 must be submitted electronically in the Foreign Labor Application Gateway (FLAG) system after 6:59 PM on May 31, 2023, or by mail with a postmark date June 1, 2023 or later. Go to dol.gov/agencies/eta/foreign-labor for additional information.
