The PERM Labor Certification Process | Practical Law

The PERM Labor Certification Process | Practical Law

A Practice Note addressing PERM labor certification, the first step in many employer-sponsored green card (permanent residence) processes. This Note describes each of the requirements that employers must satisfy to prepare a PERM application, including prevailing wage determinations, recruitment, candidate assessment, and PERM audit file document retention.

The PERM Labor Certification Process

Practical Law Practice Note 8-507-1328 (Approx. 34 pages)

The PERM Labor Certification Process

by Practical Law Labor & Employment
Maintained • USA (National/Federal)
A Practice Note addressing PERM labor certification, the first step in many employer-sponsored green card (permanent residence) processes. This Note describes each of the requirements that employers must satisfy to prepare a PERM application, including prevailing wage determinations, recruitment, candidate assessment, and PERM audit file document retention.
While not required in every employment-based green card case, labor certification is often the first step in the employer-sponsored green card process (see Key Immigrant Visa Classifications Chart). The Department of Labor (DOL) devised an electronic system called the Program Electronic Review Management (PERM) system to process applications for permanent labor certification. Accordingly, the terms PERM and "labor certification" generally are used interchangeably when discussing this process (while the term "program electronic review management" is no longer used at all and the legacy system created by DOL has been replaced by a more modern system).
Before a foreign worker may be admitted to the US as a lawful permanent resident (LPR), the Immigration and Nationality Act of 1952 (INA) requires the DOL to certify that:
  • No US workers are willing, able, qualified, and available to accept the job opportunity in the area of intended employment.
  • Employment of the foreign worker would not adversely affect the wages and working conditions of similarly employed US workers.
(INA § 212(a)(5)(A)(i) (8 U.S.C. § 1182(a)(5)(A)(i)).)
Permanent labor certification is the process by which the DOL's certification is accomplished.
The PERM process is designed to protect US workers by requiring employers to test the local job market in the area where the position offered to the foreign worker is located. This requires the employer first to identify the specific job that the foreign worker will perform when they obtain a green card and then conduct the steps of the PERM application process.
If the employer cannot file the PERM application based on the results of its recruitment campaign or the DOL refuses to certify a filed PERM application, the employer's green card sponsorship of the foreign worker cannot move forward. In addition, if either the employer or the worker changes their mind about the worker performing the job described in the PERM application, the entire green card process may need to end or be restarted.
This Note describes the procedures that employers should follow to obtain PERM certification for foreign workers. Specifically, this Note covers:
  • How to identify the job opportunity offered to the foreign worker and to structure a recruitment campaign.
  • How to conduct PERM recruitment campaigns.
  • The standards for evaluating the qualifications of US workers who respond to the PERM recruitment campaign.
  • Obligations for document retention and audit file procedures.

Overview of Required PERM Steps

The required PERM application steps covered in this Practice Note include:
For a high-level overview of PERM certification, see Practice Note, PERM Labor Certification: Overview. For a review of administrative decisions on issues in PERM applications, see Practice Note, BALCA: PERM Case Tracker.

The Employer's Job Offer and the Worker's Qualifications for the PERM Application

For the employment-based green card process, the employer must sponsor the foreign worker for employment in a particular occupation. When the sponsorship includes PERM certification, the employer must identify a specific job opportunity to be filled by the foreign worker because of PERM's recruitment requirement. The job offered may be the same job currently held by the foreign worker or a different one. For information on the effect of any changes to the offered job, see Practice Note, Business Immigration Sponsorship: Overview: Employer and Worker Intent in the Green Card Process.
The job opportunity must be:
(20 C.F.R. § 656.3.)
Before the PERM application can be filed, the employer must take steps to demonstrate the necessity of hiring a foreign worker for the offered job (see Overview of Required PERM Steps). Because the purpose of the PERM process is to protect the US workforce, the object of PERM recruitment is not to find the best-qualified candidate but to see if a US worker:
  • Responds to the recruitment.
  • Meets the minimum requirements for the job.
  • Can perform the job's key duties and responsibilities.
  • Is available to begin employment in a reasonable period of time.
For an explanation of who qualifies as a US worker, see Practice Note, PERM Labor Certification: Overview: Definition of US Workers.
Therefore, to prepare the PERM application, an employer must know:
  • The essential duties and responsibilities of the position.
  • The minimum requirements of the position, including:
    • education;
    • training;
    • experience; and
    • special skills.
  • The job's geographic location.
  • The salary and benefits offered to the foreign worker.
  • When the foreign worker gained each of the qualifications needed to perform the job offered.
  • How many of its employees hold the same position at the worksite where the foreign worker will be located.
  • Whether all current employees performing the same job meet the stated minimum job requirements.
The employer may not create job duties and requirements specifically to match the qualifications and background of the foreign worker. Any "tailoring" implies that the job opportunity is not really available to US workers during the recruitment campaign and is a basis for PERM denial. If the employer's existing employees were hired with fewer qualifications than described for the PERM recruitment, the employer should prepare a business necessity explanation for the new requirements. The business necessity explanation must be kept in the audit file unless requested by the DOL. (See Setting Actual Minimum Requirements.)

Relation of Employer's Job Requirements to the USCIS Petition Classification

The offered job is the basis of the employer's green card sponsorship of the foreign worker. The minimum requirements necessary to perform the job determine which United States Citizenship and Immigration Services (USCIS) classification applies to the foreign worker because they directly correlate to the eligibility criteria for the employment-based immigrant visa preference categories.
For example, minimum requirements of at least:
  • A master's degree or a bachelor's degree and five years of experience falls under the USCIS's employment-based second preference (EB-2) category.
  • A bachelor's degree or at least two years of experience falls under the USCIS's employment-based third preference (EB-3) category.
For more information on employment-based green card categories, see Key Immigrant Visa Classifications Chart.
To continue the green card sponsorship process, the employer must file an immigrant visa petition with USCIS within 180 days (six months) after approval of the PERM application (20 C.F.R. § 656.30(b)(1); see Practice Note, Business Immigration Sponsorship: Overview: Green Card Process). The immigrant visa petition confirms the employer's job offer to the foreign worker. For more information, see Practice Note, Immigrant Visa Petitions Based on Certified PERM Applications.
For more information on establishing minimum job requirements, see Minimum Education and Experience Required for the Job. For more information on the foreign worker's qualifications, see The Foreign Worker's Qualifications for the Offered Job.

Impact of Immigrant Visa Backlogs

USCIS has a limited annual supply of green cards it may award each fiscal year, which are allocated based both on the employment-based preference category and the green card applicant's country of birth (otherwise known as their country of chargeability). Typically, far more workers are sponsored under the EB-3 category because fewer jobs normally require at least an advanced degree or extensive experience.
Therefore, the preference category under which the foreign worker is sponsored, as well as the worker's country of birth, impacts how long it will take the foreign worker to obtain green card status. For more information on immigrant visa backlogs, see Practice Notes, Business Immigration Sponsorship: Overview: Immigrant Visa Backlogs and Employment-Based Immigrant Visa Petitions in the US: Immigrant Visa Backlogs.

The Work Location Specified on the PERM Application

The employer's test of the labor market must take place in the geographic area of the offered job. DOL regulations define the area of intended employment as the area within normal commuting distance of the street address where the job is located (20 C.F.R. § 656.3). The scope of the normal commuting distance depends on the actual location. Normal commuting distance may vary depending on:
  • Whether the job is located in an urban, suburban, or rural environment. For example, a job located in Macon County, Alabama likely will have a larger normal commuting distance than one in Wilmington, Delaware.
  • Proximity to a major metropolitan center. For example, normal commuting distance in the New York City metropolitan area may be broader than that of the Kansas City metropolitan area.

Roving Employees

There is no specific DOL rule defining the area of intended employment for PERM recruitment when the offered job requires the worker to perform services in multiple locations. Consultants, auditors, or professional staffing agencies often employ roving employees.
DOL guidance issued under the labor certification rules in place before the PERM regulations became effective in March 2005 advised employers to prepare and file labor certifications based on the location of the employer's main or headquarters office, while indicating the job worksite as "various unanticipated locations throughout the U.S." (Field Mem. No. 48-94 (Policy Guidance on Alien Labor Certification Issues), § 10 (Empl. & Trn. Admin. May 16, 1994)). BALCA, the PERM appeals body, continues to apply this guidance as a reasonable alternative when there is no static or specific permanent worksite. For sample BALCA decisions involving roving employees and unanticipated worksites, see Infosys Ltd., 2016-PER-00074 (May 12, 2016), eBusiness Applications Sols., Inc., 2005-INA-00087 (Dec. 6, 2006), Paradigm Infotech, Inc., 2007-INA-00003 (June 15, 2007) and Amsol, Inc., 2008-INA-00113 (Sep. 3, 2009).
The DOL provided somewhat different guidance on February 21, 2006 in a frequently asked questions and answer update addressing the required notice of filing posting (and recruitment) for roving employees under the DOL's Schedule A program for physical therapists or professional nurses (see 20 C.F.R. § 656.5). While this guidance does not apply directly to PERM filings for occupations that are not on Schedule A, it created confusion about the proper procedure that employers should follow when foreign worker employees are sponsored for jobs that do not have a fixed and known worksite. The Schedule A guidance specifies that:
  • If an employer knows where the worker will be based, it must post notice of filing:
    • physically at the client worksite; and
    • internally using in-house electronic or print media.
  • If an employer does not know where the worker will be based, it must post notice of filing:
    • physically at all client worksites; and
    • internally using in-house electronic or print media.
  • If an employer does not know where the worker will be based and has no clients, a PERM application cannot be approved for the worker due to the lack of a bona fide job opportunity for the worker.
(DOL: OFLC Frequently Asked Questions and Answers, Notice of Filing (Question 12).)

The Occupational Classification of the Job

The DOL assigns the offered job a standard occupational classification (SOC) code when reviewing the employer's PWD request (see Prevailing Wage Determination). The SOC code lasts throughout the green card process and may affect how DOL and USCIS officers review the PERM application and immigrant visa petition. Employers should review the DOL's assigned SOC code when they receive the PWD and address any misclassification issue immediately.
When identifying the occupation offered to the foreign worker, the employer should ensure that:
  • The position's title is the most appropriate for the job's function.
  • The stated duties and responsibilities are descriptive enough to inform the DOL and candidates what the job entails.
Although the DOL uses the job title in assigning the SOC code, in general the substance of the duties and responsibilities are more important than the title. While changes to the offered job during the green card process may be problematic for its continuation, job title changes alone do not indicate an actual job change (see Box, Employer and Employee Intent in Green Card Sponsorship).
On November 15, 2021, the DOL published a notice advising stakeholders that the agency will be publishing updates to Appendix A, the resource used by the DOL and employers to determine if employers must conduct additional recruitment for professional positions (see Required PERM Recruitment Efforts). (Appendix A is an appendix to the Final Rule creating the PERM application process ("Labor Certification for the Permanent Employment of Aliens in the United States; Implementation of New System," 69 Fed. Reg. 77326 (December 27, 2004)).) The notice also creates new procedures to for establishing job zones for a SOC code and occupational title when O*NET job zone data is not yet available ("Update to Appendix A to the Preamble-Education and Training Categories by O*NET-SOC Occupations; Labor Certification for Permanent Employment of Immigrants in the United States and Procedures To Establish Job Zone Values When O*NET Job Zone Data Are Unavailable," 86 Fed. Reg. 63070 (Nov. 15, 2021)).

Minimum Education and Experience Required for the Job

The minimum education, training, and experience required by the employer for the job must be those normally required for the occupation. The requirements may not exceed the specific vocational preparation (SVP) described in the DOL's occupational guide O*NET OnLine, which was developed and is maintained by the DOL's Employment and Training Administration (ETA).
Employers must describe the job's minimum requirements with respect to:
  • Education.
  • Number of years and type of experience.
  • Training.
  • Skills.
  • Licenses or certificates.
These minimum requirements are the basis of the foreign worker's green card sponsorship (see Relation of Employer's Job Requirements to the USCIS Petition Classification).

Setting Actual Minimum Requirements

The essential job requirements stated in the PERM application must be the actual minimum requirements needed to perform the job (20 C.F.R. § 656.17(i)(1)). An employer's preferred qualifications may be included in the recruitment and the application, but may not be used to disqualify applicants otherwise meeting the actual minimum qualifications for the job. An example is a job for which the employer:
  • Would not hire someone without the required education and experience (such as a bachelor's degree in accounting and two years of experience as an auditor).
  • Prefers someone who has a master's of business administration in addition to the bachelor's degree.
For information on evaluating US worker applicants in the PERM recruitment process, see PERM Recruitment Résumé Assessment and Reporting.
An employer must not have hired workers with less training or experience than that required in the PERM recruitment. If the employer has hired workers for the job with less experience or training, it must justify including the higher requirements in the PERM recruitment by documenting business necessity (see Business Necessity Justification).
Employers may include alternatives to the primary job requirements if they are substantially equivalent to the primary requirements. The PERM application must state that any suitable combination of education, training, or experience is acceptable if the foreign worker both:
  • Works for the employer when the application is filed.
  • Qualifies for the job based only on the alternative requirements.
(20 C.F.R. § 656.17(h)(4).)
Employers acknowledge their acceptance of alternative qualifications on the new Form ETA-9089 Section G.4b.
For more information on the foreign worker's qualifications for the job opportunity, see The Foreign Worker's Qualifications for the Offered Job.

Business Necessity Justification

Documents must be retained in the audit file establishing the employer's business need including for minimum job requirements in the PERM recruitment that:
  • Exceed the employer's past hiring practices.
  • Exceed normal O*NET requirements.
  • Include written or oral foreign language fluency.
  • Reflect a combination of jobs.
These job requirements typically are considered to be excessive or unusual and may disadvantage US worker applicants in favor of a foreign worker. Therefore, business necessity documentation must clearly demonstrate that the job duties and requirements in the PERM recruitment are:
  • Reasonably related to the occupation in the context of the employer's business.
  • Needed to reasonably perform the job.
(20 C.F.R. § 656.17(h)(1).)
The new Form ETA-9089 includes Questions 6 through 9 in Section G where employers can identify if any of these issues exist for the application.
For more information on the PERM audit file, see The PERM Audit File: Document Retention Requirements.

Foreign Language Requirements

The DOL is particularly wary of foreign language requirements because many foreign workers are fluent in a language other than English. The DOL's regulations prohibit including a foreign language requirement, unless it is justified by business necessity because:
  • The requirement is inherent to the job, as for a translator.
  • The job requires the applicant to communicate with a large majority of clients, contractors, or employees who cannot communicate in English, as supported by documents showing:
    • the number and proportion of clients, contractors, or employees who cannot communicate in English;
    • a description of why the job requires frequent contact and communication with these clients, contractors, or employees (for example, a detailed plan to market products or services in a foreign country); and
    • an explanation of the reasonable basis to believe that these clients, contractors, or employees cannot communicate in English.
(20 C.F.R. § 656.17(h)(2).)

A Combination of Occupations

An employer that sponsors a foreign worker for a position that combines the duties and responsibilities of multiple occupations must justify the requirements for each occupation. The employer's documentation must show either:
  • The employer normally employs one person for that combination of occupations. This may be documented by the employer's position descriptions and payroll records.
  • It is customary for employees of all or most employers in the area of intended employment to perform the combination of occupations. This may be documented by letters from other employers stating that their workers normally perform the specific combination of occupations in the area of intended employment.
  • Business necessity requires the specific combination job opportunity (for example, where the company is a small, closely held organization experiencing a significant business expansion and training a new employee would interfere with on-going business). This may be documented by any documents showing the necessity and that the job duties and responsibilities are:
    • reasonably related to the occupation in the context of the employer's business; and
    • essential to reasonably perform the job.
(20 C.F.R. § 656.17(h)(3).)

The Foreign Worker's Qualifications for the Offered Job

The foreign worker must qualify for the offered job, either at the time when the worker joins the employer or when they undertake the offered position, if they are employed by the sponsoring employer in a different position before moving into the offered job.

Experience Gained with the Employer

Gaining the required experience to qualify for the offered job while already working for the sponsoring employer generally is prohibited, even as a contract worker. The foreign worker usually must show that they gained the necessary experience beforehand, with a different employer. The implication of hiring a foreign worker with less experience than the employer requires for US workers is that the employer then trains or seasons the foreign worker while on the job. The DOL's stance is that, absent a business necessity justification, the employer is changing the job requirements to favor the foreign worker by either:
  • Preferring the trained current worker over a new worker who needs training.
  • Tailoring the job requirements to match the experience level of the foreign worker.
However, the foreign worker may use experience gained with the sponsoring employer to qualify for the offered job in two circumstances:
  • The employee's experience is gained in a position that is sufficiently dissimilar from the offered job. The DOL defines similar (called "substantially comparable") jobs as those performing the same duties more than 50% of the time (20 C.F.R. § 656.17(i)(5)(ii)).
  • The employer can show that it is no longer feasible to train a worker on the job to qualify for the offered position. For example, the employer may be able to show that industry circumstances have changed so drastically that the type of training given to the foreign worker is no longer available for new employees.
(20 C.F.R. § 656.17(i)(3).)
An employer should prepare a statement justifying its requirements and its use of the foreign worker's experience gained with the employer when preparing the PERM application. The statement should be retained in the audit file and submitted to the DOL if requested in an audit. (See El Boqueron, Ltd., 2012-PER-00164 (Apr. 28, 2014) and Kentrox, Inc., 2012-PER-00038 (May 22, 2014).)

Proof of the Foreign Worker's Qualifications

The foreign worker's qualifications must be clear from the PERM application. The information is entered on Appendix A. For example, if the employer's job offer requires a bachelor's degree, two years of experience in a particular position, and a professional license, then the PERM application must contain all the information necessary for the DOL to confirm that the worker has satisfied each requirement. DOL has provided guidance to explain how qualifications that are not tied to a specific work or academic experience should be entered on the application form (see DOL: OFLC Frequently Asked Questions and Answers, Alien Experience (Question 8)). It is good practice to complete as much of the form as possible, including month and year date ranges for all qualifying experience. However, the DOL will accept less-specific information, as long as the PERM application shows that the foreign worker possesses at least the minimum required experience (see Conca D'oro, 2011-PER-02964 (June 5, 2014)).
The documents substantiating the foreign worker's qualifications are not submitted to the DOL as part of the PERM application process. Rather, they are submitted to USCIS at the second stage of green card processing, the immigrant visa petition (see Practice Notes, Immigrant Visa Petitions Based on Certified PERM Applications and Business Immigration Sponsorship: Overview: Basic Steps in the Green Card Process).
USCIS regulations require that the documents supporting the immigrant visa petition include:
  • The original certified PERM application, signed by:
    • the employer;
    • the foreign worker; and
    • the attorney of record or agent, if any.
    (20 C.F.R. § 656.17(a)(1).)
  • Confirmation of qualifying experience or training in the form of:
    • letters from current or former employers or trainers, including the name, address, and title of the signer and a specific description of the duties performed or training received by the foreign worker; or
    • other documents proving the foreign worker's experience or training, such as employment certificates, offer and termination letters, training diplomas, internship records, performance appraisals, or similar evidence. Alternate evidence must demonstrate both the type of required experience or training and its duration.
  • For advanced degree professionals in the EB-2 category, confirmation that the worker has the advanced degree required on the PERM application. This can be established by submitting a copy of an official academic record showing an award of:
    • a US advanced degree or a foreign equivalent degree; or
    • a US bachelor's degree or a foreign equivalent degree, and evidence that the worker has at least five years of progressive post-bachelor's degree experience in the field. (However, to use this alternative proof of qualifications, the PERM application must specifically require a bachelor's degree and five years of experience as a primary or alternative requirement.)
  • For professionals in the EB-3 category, confirmation that the foreign worker has a US bachelor's degree or foreign equivalent degree in a field related to the occupation required by the PERM application. This can be established by submitting a copy of an official college record showing:
    • when the degree was awarded; and
    • the field of study.
(8 C.F.R. § 204.5(g)(1), (k)(3)(i) and (l)(3)(ii)(C).)
Except for the original signed PERM application, USCIS generally accepts legible photocopies of documents, but in its discretion may request original documents (8 C.F.R. § 204.5(g)(1)).

Prevailing Wage Determination

Employers must submit an electronic PWD request on Form ETA-9141 through the DOL's Foreign Labor Application Gateway (FLAG) system. FLAG was introduced in June 2019 to replace the DOL's legacy iCert website. FLAG is designed to improve customer service and modernize foreign labor certification program administration through the OFLC. With the addition of the PERM application in FLAG, the system can now connect the PWD and PERM application. Essential information from the PWD then populates the PERM application.
PWD requests are processed by the DOL National Prevailing Wage Center (20 C.F.R. § 656.40). The DOL ultimately decides the outcome of the PWD.
PWDs may be issued for a specified validity period between 90 days and one year. The PWD must be valid either when:
(20 C.F.R. § 656.40(c).)
In addition to the job title and job duties and responsibilities (SOC code), the DOL considers the following factors when designating the appropriate prevailing wage:
  • Required education field.
  • Required training or skills.
  • If the worker will supervise subordinates, what functions the subordinates perform.
  • Whether the job requires frequent travel.
(ETA: Prevailing Wage Determination Policy Guidance (Nov. 2009).)
The DOL determines the prevailing wage based on the most appropriate of the following sources:
  • An employer-provided survey. An employer must request to use an outside survey on Form ETA-9141 and provide:
    • the full name of the published survey;
    • the publication schedule of the survey (including publication date, date of the previous version, and the next anticipated release);
    • when the survey's data was collected;
    • a description of job duties and activities used in the survey; and
    • the survey methodology.
  • The Davis-Bacon Act or McNamara-O'Hara Service Contract Act, with applicability determined by the DOL.
  • A collective bargaining agreement (CBA). To request application of a CBA wage, an employer must indicate the existence of the CBA on Form ETA-9141 and submit:
    • a letter from the employer with a copy of the relevant part of the CBA;
    • the worker's CBA-applicable job title;
    • the appropriate wage; and
    • a letter from the union representative with the relevant section of the CBA, the CBA job title, and appropriate wage.
(20 C.F.R. § 656.40(b).)
(In 2020 and 2021, the DOL made efforts to promulgate rules increasing prevailing wages in business immigration matters including PERM applications. For more information, see Practice Note, PERM Labor Certification: Overview: DOL's 2020 and 2021 Efforts to Increase Prevailing Wages In Business Immigration.)

Required PERM Recruitment Efforts

For most PERM applications, an employer must conduct at least two forms of recruitment:
In addition, an employer must conduct supplementary recruitment efforts for PERM applications sponsoring foreign workers for professional occupations (see Additional PERM Recruitment for Professional Occupations).
An employer's failure to comply with DOL regulations governing PERM recruitment efforts can subject it to significant liability, including financial penalties and DOL intrusion in the employer's recruitment efforts (see Practice Note, PERM Labor Certification: Overview: The 2021 Facebook Settlement Agreements).
Employers of peripatetic or roving workers must identify the best location for placing print advertisements (see Roving Employees). Employers must include any travel requirements in the print advertisements and the notice of PERM filing (20 C.F.R. § 656.17(f)).
PERM sponsorship of foreign workers for the following occupations involves unique rules for recruitment, and does not follow the general regulations for required and additional recruitment outlined in this Note for other occupations (see 20 C.F.R. § 656.17):
  • College or university teachers selected under a competitive recruitment and selection process (see 20 C.F.R. § 656.18).
  • Individuals sponsored for Schedule A occupations, including:
    • physical therapists;
    • professional nurses; and
    • individuals of exceptional ability (see 20 C.F.R. § 656.15).
  • Sheepherders (see 20 C.F.R. § 656.16).

State Job Order

The employer must place an online job order (job posting) describing the job opportunity with the state department of labor in the state where the job is located (20 C.F.R. § 656.17(e)(1)(i)(A) and (e)(2)(i)).
The job order must run (that is, be open on the state website) for at least 30 days (20 C.F.R. § 656.17(e)(1)(i)(A) and (e)(2)(i)) and must be completed between 30 and 180 days before the PERM application is filed (20 C.F.R. § 656.17(e)(1)(i) and (e)(2)). For more information on timing considerations, see Practice Note, PERM Labor Certification: Overview: PERM Timing Considerations.
Each state's department of labor is responsible for creating a process for employers to place job orders to satisfy this requirement. The following is a sampling of state websites for posting job orders:

Print Advertisements

Employers must place an advertisement on two Sundays in a newspaper of general circulation for the geographic area covering the offered job worksite. The ads must not run on the same day, but may be placed on consecutive weekends.
Employers must select the newspaper that is most:
  • Appropriate for the job and the geographical location.
  • Likely to generate a response from willing, able, qualified, and available US workers.
(20 C.F.R. § 656.17(e)(1)(i)(B) and (e)(2)(ii).)
The print advertisements must be completed between 30 and 180 days before the PERM application is filed (20 C.F.R. § 656.17(e)(1)(i) and (e)(2)). For more information on timing considerations, see Practice Note, PERM Labor Certification: Overview: PERM Timing Considerations.
If the position requires at least a master's degree and experience, the employer may elect to place the second print ad in a professional journal appropriate for the job instead of a second Sunday newspaper advertisement (20 C.F.R. § 656.17(e)(1)(i)(B)(4)).
Print advertisements must contain certain information (20 C.F.R § 656.17(f)). For more information, see Practice Note, PERM Labor Certification: Overview: PERM Advertisement Content.

Additional PERM Recruitment for Professional Occupations

In addition to the basic recruitment requirements, employers sponsoring foreign workers for professional positions must conduct three supplementary forms of recruitment, which may be selected from ten options presented by the DOL (20 C.F.R. § 656.17(e)(1)(ii)).
Professional occupations are jobs requiring at least a bachelor's degree as the usual educational requirement (20 C.F.R. § 656.3). The DOL typically consults its O*NET OnLine resource to determine normal educational requirements. The requirement to conduct additional recruitment applies to these jobs even if an employer's requirements are lower for a specific job opportunity. See Practice Note, PERM Labor Certification: Overview: Recruitment Efforts.
Employers must select three additional forms of recruitment from the following options:
  • Job fairs.
  • The employer's external website.
  • An external job search website other than the employer's.
  • On-campus recruiting.
  • Trade or professional organizations.
  • Private employment firms.
  • The employer's employee referral program. The employer must show that:
    • its program offers incentives to employees for candidate referrals;
    • its program was in effect during the PERM recruitment period; and
    • its employees were on notice about the PERM job opening.
    (Sanmina-Sci Corp., 2010-PER-00697 (Jan. 19, 2011).)
  • Notice at a campus placement office.
  • Local or ethnic newspapers. A local newspaper typically covers a smaller area or a more specialized topic than the newspaper of general circulation that is required for the mandatory recruitment step (see Print Advertisements). However, the same newspaper may qualify as both a newspaper of general circulation and a local or ethnic paper (Delta Search Labs, Inc., 2011-PER-02871 (Apr. 24, 2014)). An employer using the same newspaper to satisfy both mandatory and additional PERM recruitment steps should:
    • evaluate circulation numbers and compare local newspapers in the area where the job is located;
    • place the local advertisement on a day most likely to reach the local population; and
    • retain documents that explain how it chose the newspaper, including any circulation figures.
  • Radio or television advertisements.
(20 C.F.R. § 656.17(e)(1)(ii).)
The supplementary recruitment efforts are not subject to the advertisement content requirements of Section 656.17(f) that apply to print advertisements and the notice of filing (Symantec Corp., 2011-PER-01856 (July 30, 2014)). The performance and documentation requirements for each type of supplemental recruitment are found in the regulatory section describing the option. For example, compare the documentation requirements for recruitment via a third-party website ("providing dated copies from one or more websites that advertise the occupation") versus campus placement ("a copy of the employer's notice of the job opportunity") (20 C.F.R. § 656.17(e)(ii)(C) and (H)).

Notice of PERM Filing

The employer must give notice of the PERM filing to its employees in the same position and at the location of the sponsored worker. When the job offered is one represented by a union, the notice must be given to the union's bargaining representative. If the job is not represented by a union, the notice must be physically posted at the worksite, as well as published on all in-house electronic and print media. (20 C.F.R. § 656.10(d).)
Employers and their counsel should be alert to state and local laws that may impact the notice of filing, including:
  • Pay transparency laws that generally require employers to include specific wage information. For a list of states and localities with pay transparency laws and their requirements, see Practice Note, State and Local Pay Disclosure Requirements in Job Postings Chart: Overview.
  • Electronic posting requirements. For example, on December 16, 2022, New York Governor Hochul signed S. 6805 amending N.Y. Lab. Law § 201 to require employers to make available electronically any documents that are required to be posted physically in the workplace under the New York Labor Law or under Federal law or regulation.

Content of Notice

The notice of filing must include:
  • A statement that the notice is provided because of the PERM filing for the job opportunity.
  • A statement that any person can provide evidence bearing on the PERM application to the Certifying Officer (see Practice Note, PERM Labor Certification: Overview: Federal Agency Responsible for PERM).
  • The address of the Certifying Officer.
  • The following information about the job opportunity:
    • the salary offered;
    • the name of the employer;
    • the contact information for the submission of résumés by interested US workers;
    • a description of the vacancy sufficient to explain the job opportunity; and
    • the geographic location of the job.
(20 C.F.R. § 656.10(d)(3) and (4).)
The notice of filing must contain the same information about the job opportunity as print advertisements (20 C.F.R. §§ 656.10(d) and 656.17(f)). It must contain sufficient detail for US workers to understand the nature of the job opportunity, but does not need to include a specific list of every duty and responsibility (Architectural Stone Accents, Inc., 2011-PER-02719 (July 3, 2013); but see Team Intl., 2017-PER-00161, (Aug. 18, 2021), finding that omitting alternative requirements from the notice failed to apprise US worker candidates of what they needed to know to apply for the job).
The notice does not need to include the posting dates (Seven Oaks Landscapes-Hardscapes, Inc., 2011-PER-02628 (July 26, 2013)). Employers must affirm on the PERM application that the posting occurred for the required duration, during the required timeframe. Employers should keep track of the dates and locations of postings for their own records. See Completing the PERM Application Form.
A failure to include all required information on a notice of PERM filing is unlikely ever to be overcome on appeal (Aero Parts Mgmt., LLC, 2011-PER-00704 (May 25, 2012)).

Location of Posted Notice

Notice for jobs not represented by a union must be posted in a conspicuous location at the worksite. The notice must be:
  • Clearly visible.
  • Unobstructed.
Good locations include places where other government notices are posted.
Employers also must publish the notice in any in-house media used for recruiting similar positions within the employer (for example, an intranet) (20 C.F.R. § 656.10(d)(1)(ii)).

Timeframes for Posted Notice

The notice must be posted for at least ten consecutive business days (20 C.F.R. § 656.10(d)(1)(ii)).
The notice period must be completed between 30 and 180 days before the PERM application is filed (20 C.F.R. § 656.10(d)(3)(iv)).
For more information on timing considerations, see Practice Note, PERM Labor Certification: Overview: PERM Timing Considerations.

Addressing Layoffs in the PERM Application

Employers must undertake additional steps in the PERM application process if they have experienced certain kinds of layoffs. For purposes of this section, a layoff is the involuntary separation of one or more workers without cause or prejudice (20 C.F.R. § 656.17(k)(1)). Layoffs meeting each of the following qualifications prompt additional steps by the sponsoring employer:
  • It occurred during the six months before the PERM application filing.
  • It involved the occupation offered to the foreign worker or a related occupation requiring performance of a majority of the same essential duties as the job opportunity.
  • It occurred at the location where the foreign worker will be employed.
If a layoff meeting each of these qualifications has occurred, the employer must:
(20 C.F.R. § 656.17(k).)

PERM Recruitment Résumé Assessment and Reporting

Employers must assess the résumés of all candidates who respond to any form of recruitment, interview candidates that appear qualified for the job opportunity, and complete a report on the recruitment results. For an employer to file a PERM application, all US worker candidates must either be:
  • Disqualified as:
    • not willing to perform the job;
    • unable to perform the job;
    • not possessing the minimum job requirements; or
    • unable to begin employment in a reasonable time.
  • Offered an equal job with the employer.
If the employer can neither disqualify nor hire US workers that respond to the recruitment campaign, the employer cannot file the PERM application for the foreign worker.

Who Can Conduct the Assessment

The following individuals may consider US workers for the offered job:
  • An employee of the employer.
  • The employer's representative, who must be the person who normally interviews such applicants on behalf of the employer, regardless of whether a labor certification is involved.
The assessment may not be completed by either:
  • The foreign worker being sponsored.
  • The foreign worker's agent or attorney of record, unless the agent or attorney is also the employer's representative.
(20 C.F.R. § 656.10(b)(2).)

The Assessment of Candidates: Standards for Evaluating Qualifications

US worker candidates must be evaluated on their suitability for the position offered to the foreign worker in light of the minimum requirements advertised as necessary to perform the job. They may be rejected only for lawful job-related reasons. For example, a candidate who does not have experience in a required skill may be rejected from consideration for the job. However, employers may not reject candidates who are overqualified for the offered position if they do possess the minimally required education, experience, training, and skills.
In providing an explanation of the lawful job-related reasons for rejecting a US worker candidate, the employer should provide enough specificity to allow the DOL to identify the specific skills or experience that the candidate lacks.
US workers who may acquire the necessary skills after a reasonable on-the-job training effort are considered able and qualified and may not be rejected for those reasons (20 C.F.R. 656.17(g)(2)).
Applicants who clearly are not qualified for the job based on their resumes may be rejected without an interview or further review. However, applicants whose education, training, or experience is less clear, and it is reasonably possible that they could be qualified, should be interviewed or investigated further to determine their qualifications for the offered job. Employers should err on the side of caution and interview any likely candidates. (See Select Int'l, Inc., 2011-PER-01478 (Sept. 19, 2012).)
Employers should follow normal recruiting procedures for any candidates that are or may be qualified for the PERM position. Candidates should be invited to interview, either in person or by telephone or video conference, with the person who normally conducts candidate screens for the employer (for example, a recruiter or other human resources employee or the manager of the position offered). However, documenting a PERM case is critically important. As part of the candidate assessment process, therefore, the employer should:
  • Retain documents, including delivery confirmation, of any invitation to interview, whether sent by email, regular mail, or courier mail, and any other correspondence between the employer and the candidate about the job opportunity. The employer should retain or have access to telephone records if needed to prove telephone contact with the candidate.
  • Take detailed notes of any interview (whether in person or by telephone), including the interviewer's contemporaneous reactions to the candidate and his qualifications.
  • Never tell a candidate that the job is not really open, is only for immigration, or any other statement that may be perceived as driving the candidate away from the job, as PERM applications can be filed only for positions that are open and available to US workers.
The employer should retain documents regarding the recruitment process, as they may be required by the DOL as evidence of the employer's good faith efforts to interview and hire US worker candidates for the position.

The PERM Recruitment Report

At the conclusion of the assessment of any US worker candidates for the position, the employer must complete a report for the PERM audit file describing:
  • The recruitment steps.
  • The results of the recruitment.
  • The number of US worker candidates hired.
  • The number of candidates rejected, categorized by the lawful job-related reasons for their rejection.
(20 C.F.R. § 656.17(g)(1).)
The DOL may request a copy of the audit file, including the recruitment report, in an audit. For more information about the PERM audit file, see The PERM Audit File: Document Retention Requirements.
After reviewing the recruitment report, the DOL may request a copy of all résumés or applications received during the recruitment campaign (20 C.F.R. § 656.17(g)(1)). The DOL may also request copies of other documents, such as proof of applicant contact.

Completing and Filing the PERM Application

The PERM application may be filed either by mail or electronically through the online PERM system. On June 1, 2023, the DOL introduced a new Form ETA-9089 and launched the PERM module on the DOL's FLAG system. This is the first time that all of the DOL's online filing systems have been on the same platform.
The new form includes more specific questions and may require employers to provide additional information. When initiating a new Form ETA-9089, the drafter must link it to an existing PWD. When the two forms are linked, key information from the PWD is pulled into the ETA-9089, including details about the employer, the job, and the prevailing wage itself.
The main portion of the ETA-9089 looks mainly at the employer and the job opportunity. The ETA-9089 uses appendices to gather more detailed information about:
  • The foreign worker's background and qualifications (Appendix A).
  • Additional worksites, if any (Appendix B).
  • Business necessity justification (Appendix C) if:
    • the job is live-in;
    • the job involves a combination of occupations;
    • the job requires foreign language proficiency;
    • the job requirements exceed the occupation's SVP;
    • the employer used a credentialing service to qualify the worker's education or experience;
    • the employer received payment-in-kind for submitting the application; or
    • the employer had a layoff in the occupation in the six months before filing the application.
  • The application is for a college or university teacher (Appendix D).
DOL plans to complete processing any PERM applications received under the legacy PERM system before it will consider any applications filed on FLAG. It's not clear how long this will take, but may be at least a year or more. As a result, employers and their counsel should expect delays in processing. In addition, employers and their counsel must complete and file the new form without any guidance from the DOL on best practices or information on how to document unclear scenarios.
For more information on registering with the PERM system and filing PERM applications, see Box, PERM System and Form in Transition.

Completing the PERM Application Form

The DOL's application form (Form ETA-9089) is long and complex, and its processing of the PERM application is unforgiving of errors or omissions on the form. The information entered on the application must clearly and accurately:
  • Reflect the recruitment conducted for the PERM application.
  • Represent the job opportunity offered to the foreign worker, because the certified PERM application is the basis of the employer's petition to the USCIS sponsoring the worker for a green card.
  • Reflect the foreign worker's education and experience to demonstrate the worker's qualifications for the offered job.
If an employer includes in the recruitment advertisements other pre-employment requirements, such as drug tests or background checks, the same requirements must be included as job requirements on the PERM application (Prosoft Assocs., Inc., 2011-PER-01209 (Aug. 3, 2012)).
The DOL has provided guidance discussing where on the PERM application employers should enter information about the sponsored foreign worker's qualifications, such as certifications, licensure, or other credentials. Specifically, the guidance clarifies that information about a foreign worker's qualifications that satisfy the minimum requirements of the job offered should be listed in Section K, Alien Work Experience. Qualifications such as certifications, licenses, or coursework that were obtained outside of the worker's prior work experience (and therefore are not listed in connection with those jobs elsewhere in the application) should be entered in a separate "job" section after all work experience has been entered, including only the pertinent information in Question 9 (Questions 1 to 8 may be left blank). When submitted, the PERM form should clearly demonstrate that the foreign worker has all of the qualifications required to perform the offered job. (See DOL: OFLC Frequently Asked Questions and Answers, Alien Experience (Question 8).)
DOL regulations bar any post-filing modifications of PERM application forms, even to correct minor clerical errors (20 C.F.R. § 656.11(b)). Typographical errors may result in denial of the PERM application, even if all recruitment documents contained the correct information and no US workers were misled in the recruitment (Sushi Shogun, 2011-PER-02677 (May 28, 2013)).
For more information on registering with the PERM system and filing PERM applications, see Box, PERM System and Form in Transition.

Filing the PERM Application

The DOL prefers that employers file PERM applications electronically, although it does accept mailed applications (see 20 C.F.R. § 656.17(a)(1) and DOL: OFLC Frequently Asked Questions and Answers, Filing - How to File (Question 2)).
Electronically filed PERMs are considered filed on the day that they are submitted. Mailed PERM applications are date-stamped on receipt. Mailed applications may take longer to process because the DOL must manually enter all of the information into the PERM system before it begins processing the application. (See DOL: OFLC Frequently Asked Questions and Answers, Filing - How to File (Question 10)).

Possible PERM Application Outcomes

PERM applications are subject to layers of government action and may result in several different outcomes, including:

Audit

A pending PERM application may be subject to audit by the DOL. The audit may be requested either:
  • Randomly.
  • Based on the job requirements specified in the recruitment or the employer's response to certain PERM application questions, including:
    • a requirement for fluency in a foreign language;
    • minimum job requirements that exceed DOL-determined standards for the occupation;
    • a job opportunity that combines duties from two or more occupations;
    • submission of unsolicited documents while the PERM application is pending; or
    • a strike or layoff affecting the offered job within the six months before filing.
(20 C.F.R. § 656.20(a).)
The DOL's PERM audit letter gives employers 30 days to submit requested documents (20 C.F.R. § 656.20(a)(2)). The DOL has discretion to grant one 30-day extension if requested by the employer (20 C.F.R. § 656.20(c)). The employer must return a copy of the PERM audit file to the DOL with its response, including a business necessity explanation for any special requirements, such as the need for fluency in a foreign language (see The PERM Audit File: Document Retention Requirements).
Employers may not withdraw PERM applications that are selected for audit without submitting the documents requested in the audit letter.
Failing to return the requested documents within the required timeframe likely will lead to denial of the PERM application. The employer also may be subjected to supervised recruitment in future application filings. (20 C.F.R. § 656.20(b).)

Final Determination

On September 25, 2020, the Office of Foreign Labor Certification (OFLC) announced that it would permanently adopt the electronic issuance of PERM labor certifications to employers and their authorized attorneys or agents.
As of March 24, 2020, due to the impact of the COVID-19 pandemic, employers (or their authorized attorney or agent) who file a PERM application and are granted a permanent labor certification by OFLC, have received the certified ETA Form 9089 and Final Determination letter by email. This protocol will now continue permanently.
If employers or their authorized attorneys or agents submit the PERM application by mail and are unable to receive the certified ETA Form 9089 documents by email, OFLC will send the original security paper ETA Form 9089 and Final Determination letter by UPS regular delivery.
Electronic transmission of the certified PERM is made possible at least in part by an information sharing protocol in place between DOL and USCIS. On July 31, the DOL announced it entered into a Memorandum of Agreement (MOA) with the DHS, acting through USCIS. The agencies provide access to each other and share information about immigrant and nonimmigrant petition records and data contained within the OFLC's labor certification and Labor Condition Application (LCA) databases. The MOA establishes processes for USCIS to refer to the DOL suspected employer violations within the H-1B program that USCIS identifies while conducting administrative and targeted site visits and adjudicating petitions (which the DOL has not previously accessed as an information source for enforcement purposes).
The DOL may issue a final determination on a PERM application of either:

Fraud, Willful Misrepresentation, or Violation of PERM Regulations

PERM applications containing false statements or that are otherwise determined to be fraudulent are denied (20 C.F.R. § 656.31(a)).
An employer found to have made a material misrepresentation in at least one PERM application may be required to conduct supervised recruitment for all PERM filings for up to two years (20 C.F.R. § 656.24(f)).
If the DOL suspects that an employer or its attorney or agent is involved in a possible fraud or misrepresentation in connection with the PERM process, it typically refers the matter for investigation by another government agency (such as the Department of Justice or the DHS). It also may suspend processing of any PERM applications involving that employer, attorney, or agent. (20 C.F.R. § 656.31(b).)
Employers or their attorneys or agents may be penalized for severe infractions of the DOL's PERM regulations. Possible penalties include debarment (see Debarment).

Debarment

An employer, or its attorney or agent, may be barred from the labor certification program for up to three years for the following actions taken with respect to a PERM application that was filed no more than six years earlier and that is the sole basis (or the last of a pattern or practice of behavior) of a finding of:
  • Selling, bartering, or purchasing PERM applications or certifications (20 C.F.R. § 656.12).
  • Willfully providing or helping to provide false information.
  • A pattern or practice of failing to comply with the terms of the PERM application.
  • A pattern or practice of failing to comply with audit procedures (20 C.F.R. § 656.20).
  • A pattern or practice of failing to comply with supervised recruitment (20 C.F.R. § 656.21).
  • Conduct leading to a court, DHS, or Department of State finding of fraud or willful misrepresentation in a PERM application (20 C.F.R. § 656.31(e)).
(20 C.F.R. § 656.31(f)(1).)

The PERM Audit File: Document Retention Requirements

Employers must retain a copy of all documents supporting a PERM application filing. These documents compose the audit file for that PERM application.

Contents of the PERM Audit File

The PERM application audit file must include copies of documents supporting the application, including:
Professional positions (those requiring at least a bachelor's degree) require proof of three additional forms of recruitment, selected by the employer from the following:
  • Job fairs. Brochures advertising the fair and newspaper ads listing the employer as a participant.
  • The employer's external website. Dated copies of pages from the site advertising the job opportunity.
  • An external job search website. Dated copies of pages from one or more websites advertising the job opportunity (including sites associated with newspaper or journal advertisements).
  • On-campus recruiting. Copies of the notification issued or posted by the college or university placement office naming the employer and the date the employer conducted interviews for the job opportunity.
  • Trade or professional organizations. Copies of pages from newsletters or trade journals with ads for the job opportunity.
  • Private employment firms. Confirmation that recruitment was conducted by the firm for the job opportunity (for example, copies of contracts with firm and ads for the job opportunity).
  • The employer's employee referral program. Dated copies of employer notices or memoranda advertising the program and specifying the incentives. For requirements regarding the use of these programs as a supplemental recruiting method, see Additional PERM Recruitment for Professional Occupations.
  • Notice at a campus placement office. Copy of the employer's notice of the job opportunity provided to the placement office.
  • A local or ethnic newspaper. Tearsheet from the newspaper containing the employer's ad.
  • A radio or television advertisement. Copy of the ad text and written confirmation by the radio or TV station stating when the ad aired.
(20 C.F.R. §656.17(e)(1)(ii).)

Retaining the PERM Audit File

The employer must retain the PERM audit file for five years from the date the application was filed (20 C.F.R. § 656.10(f)).

Using the PERM Audit file

The DOL may require employers to submit some or all of the audit file documents in response to an audit (see 20 C.F.R. §§ 656.20 and 656.17(g)(1)).

Employer and Employee Intent in Green Card Sponsorship

In most cases of green card sponsorship, the employer must intend to employ the foreign worker in the offered job when the green card is granted. For more information on how the employer develops the details of the offered job, see The Employer's Job Offer and the Worker's Qualifications for the PERM Application. Likewise, the foreign worker must intend to be employed by the sponsoring employer in the job described when the green card is issued. Both parties' intentions must be consistent until the green card is granted to the foreign worker. If either party's intention changes while the process is ongoing, the process may need to be restarted or withdrawn altogether.
The required intention of both parties relates to the job for which the foreign worker is sponsored. Until the worker obtains the green card, the worker may serve in any other job for any other employer, in the US or abroad. The employer and the worker must reaffirm their respective intentions about the offered job at each step of the green card process (see Evaluating Employer and Worker Intent).

Changes in Intention May End or Stall the Process

Changes that may require termination or reinitiation of the green card sponsorship process include:
  • Substantive changes to the offered job duties, function, or salary (minor changes or cost of living salary increases do not impact sponsorship).
  • Any changes to:
    • the offered work location, if the new location is outside commuting distance from the original location;
    • the prospective employer, even if the new employer is in the same corporate organization; or
    • the employer's corporate structure.
  • Termination of employment.

Possible Benefits from a Previously Filed Green Card Case

When a change warranting reinitiation of the green card process occurs, how far the employer progressed in the initial process determines whether the employer and the worker may retain any benefit from the original sponsorship. Benefits to the sponsoring employer or a new employer include:

Evaluating Employer and Worker Intent

Employers and workers may be questioned by USCIS about their intent in a request for evidence in conjunction with either:
  • The employer's visa immigrant petition.
  • The worker's application for permanent residence.

PERM System and Form in Transition

The current electronic PERM system can be clunky and difficult to navigate. An employer must set up and manage a PERM account, although many if not most retain attorneys to handle all immigration filings. The system requires employers to set up a separate PERM account for each corporate entity (with a separate federal employer identification number), even if the entities are within the same corporate family. In addition, employers must enter the same information about the offered job and its minimum requirements multiple times throughout the process. To file the application electronically, employers had to register with the PERM system on the DOL's PERM website. Employers must register themselves, but could create sub-accounts for:
  • Various users in the employer's organization (such as human resources representatives or line managers).
  • Attorneys or agents representing the employer or a foreign worker in the PERM process.
In addition, once the PERM application was filed in the legacy system, employers were asked to verify their sponsorship. (Effective May 13, 2017, the DOL permitted employers to respond to the DOL's PERM sponsorship verification email within 30 days (rather than seven days, as previously required) and to do so by accessing an online sponsorship questionnaire.) The employer's representative also received notice of the sponsorship verification request. Employers that did not include an email address on the PERM application are contacted by telephone or mail. The sponsorship verification process led to inadvertent case refusals because of missed emails or phone calls.
In light of these limitations, and with the goal of streamlining the DOL's immigration processing, in 2009 DOL implemented a one-stop immigration portal called iCERT. iCERT was intended to be the single access point for employers engaging in immigration programs through the DOL, including PERM. The DOL announced that its immigration programs would be rolled out in iCERT over a period of time and that PERM registration and filing would move from the current PERM filing site, Permanent Online System, to iCERT on September 1, 2009. However, the PERM transition has been delayed indefinitely.
The iCERT site became operational on April 15, 2009 for the filing of Labor Condition Applications (LCAs) in support of H-1B nonimmigrant visa petitions (see Practice Note, The H-1B Nonimmigrant Visa Classification). Employers began processing all PWD requests through iCERT on January 1, 2010. Experience with these two types of iCERT submissions was inconsistent and the service issues were the primary cause of the delay in using iCERT for PERM applications and ultimately iCert's decommissioning.
On June 4, 2019, the DOL announced that it is moving immigration-related prevailing wage requests to a new system from the iCert system. The Foreign Labor Application Gateway (FLAG) system is designed to improve customer service and modernize foreign labor certification program administration through the OFLC.
Starting on June 10, 2019:
  • Online Applications for Prevailing Wage Determination (Forms ETA-9141) for all visa programs are submitted in FLAG.
  • Form ETA-9141 submissions through the iCERT System will be deactivated, but all Form ETA-9141s submitted through iCERT prior to June 10 will be processed.
On September 5, 2019, the DOL announced that LCAs for H-1B, H-1B1, and E-3 petitions must be filed in FLAG beginning on October 1, 2019.
On April 21, 2023, DOL finally announced that the PERM application was moving to FLAG and introduced a newly revised Form ETA-9089 at the same time. PERM was expected to launch in FLAG on May 16, 2023, but was delayed until June 1, 2023.