Major changes are coming in the employment-based immigration world as the Department of Labor (DOL) announced its plans of introducing a new PERM form (Form ETA 9089) and case management system. DOL’s revisions are intended to modernize the current form and system which have been in place since 2005. It issued proposed revisions back in 2020 and after the required notice and comment period during which the DOL accepted comments from practitioners and other stakeholders, the DOL announced last month that it is ready to implement the changes.
The employment-based green card process has three steps: a Permanent Labor Certification (PERM) issued by the DOL; an approved Immigrant Petition for Alien Worker filed by an employer for an employee; and the foreign national’s application for a green card once they become eligible.
The PERM process is the process in which employers request certification from the DOL for a permanent job opportunity they wish to offer a foreign national. As part of the process, employers must confirm that the intended job opportunity does not adversely affect the wage and working conditions of U.S. workers so the employer must obtain a prevailing wage determination from the DOL (which is the DOL determined minimum annual salary that must be paid to a worker in the position in a specific area). Then, the employer must complete a labor market test to confirm that there are not any available, qualified, and willing U.S. workers for the job opportunity. If there are no qualified workers available, the employer then attests to the DOL, with the completion and submission of the PERM form, that they have completed these required steps.
Once the PERM is certified, the employer can file an Immigrant Petition for Alien Worker (Form I-140) with the United States Citizenship and Immigration Service (USCIS). With a certified PERM and approved I-140, the foreign national is then able to apply for a green card once they become eligible in the annual green card quota.
The DOL’s goal in the recent announcement is to modernize the system, improve processing times, enhance employer experience, and streamline PERM applications. To achieve that, the new PERM form will be managed in the same case management systems used by the DOL for prevailing wage determinations. This will allow information to be automatically imported from the DOL-issued prevailing wage determination to the PERM form including, most importantly, the job duties, minimum requirements, and special skills of the job opportunity. This will end the duplicitous task of manually entering that information twice in two systems. Problems may arise though if there is a need to adjust the information imported from the prevailing wage determination, as it will result in a delay in processing.
At first glance, this change makes sense, especially in today’s world where automation is taking the place of manual tasks to improve productivity. However, several issues may also result. According to AILA (American Immigration Lawyers Association) practitioners, while automatic importation of information between the two forms may indeed reduce human error in data entry, the fact that employers will not be able to view the position details imported before submitting the PERM form may negate the potential benefits. Namely, if there is an error in the automatic transfer of information between forms, which is possible, this may lead to more denials since the DOL is strict and will deny PERM applications over small discrepancies between the two forms.
Furthermore, despite the DOL’s arguments to the contrary, practitioners have pointed out that this may cause unintended delays. Details required for adjudication by USCIS can be easily missed if the USCIS is unable to access its shared database with the DOL since those details will not be in the certified PERM application form. Even with shared databases, government agencies do not always communicate and transfer information as they should. For example, USCIS uses the SAVE system to allow other government agencies to determine benefits eligibility. The Department of Transportation (DOT) can access the SAVE system to confirm a foreign national’s status or pending status to confirm driver’s license eligibility. However, there are still often many cases where DOT cannot access the system or information has not been updated by USCIS. In these instances, the DOT has erroneously denied driver’s license benefits to eligible foreign nationals.
To combat this, AILA requested all imported information from the PWD be viewable so that drafters of the ETA 9089 can review for errors before final submission. This will also ensure other agencies will have all the necessary information to adjudicate subsequent petitions without delay.
Another important change is the opportunity for employers to clarify less standard work location arrangements which are more frequent in today’s remote world. In the new PERM form, employers will be able to explain whether the intended worksite is a company office, the employee’s private residence, or, if there is not one specific worksite or physical location, employers can indicate the geographic area of all intended worksites. In the current form, employers can only list a specific employer office worksite address even in a hybrid office and remote arrangement or if the worker is fully remote. The new form will also allow employers to identify additional worksites, which aligns more with the prevailing wage determination form.
Another major (and contested) change is that employers will need to specify the number of current employees in the intended area of employment in the new form. This information is not required by the regulations for the labor certification process and will be burdensome for most employers. Another change that will increase the burden on employers (though it is intended to reduce the number of DOL-issued audits), is that employers will now also be required to provide information on business necessity for the job opportunity. Business immigration practitioners do welcome many of the DOL’s well-intended efforts to modernize and upgrade the current PERM application process. Many, however, are cautious since the department has yet to address the biggest pain point to employers and practitioners – the absurdly long processing times for both prevailing wage determinations and PERM applications. And, of course, there is the concern that some of the changes may end up increasing the processing times for PERM applications and, possibly, the number of audits and denials. Nevertheless, if the benefits outweigh the risk of these changes, it is a step in the right direction.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Reprinted with permission from the May 10, 2023 edition of The Legal Intelligencer© 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.
