The Department of Labor’s (DOL) Office of Foreign Labor Certifications (OFLC) has announced a plan that seeks to advance the roll out of a new and “improved” ETA 9089 Form (otherwise known as the Application for Permanent Employment Certification or PERM). Originally this roll out was announced for May 16, with less than one month’s notice; but DOL just announced two business days before the scheduled implementation date that it would delay implementation until June 1. While that is welcome news, it is still not sufficient time, especially with so many unanswered questions. The DOL roller coaster ride has had too many twists and turns to ensure a safe landing.

On March 30th, the Department of Labor liaison committee of AILA and members of the National Association of Foreign Student Advisers (NAFSA) were allowed to participate in an interactive session on the new PERM application. The session lasted four hours, and its stated goal “was to gather feedback on whether the instructions on the form were clear on how to enter information, whether the flow of the form made sense, and whether anything was confusing that would benefit from improvement.”

The AILA liaison committee provided feedback noting that the expected timeline for rollout was imminent and that user-trainings were in the works by OFLC. The committee “provided OFLC with feedback requesting clarification on the wording of some questions, additional warnings, and placement of certain buttons and appendixes. OFLC recognized that a lot of training will be necessary for users to become accustomed to the new Form ETA 9089 on the FLAG platform. OFLC shared that it will be open to feedback as users become familiar with the new form.”

However, while members were still processing this information, the OFLC announced a “Fast track” implementation schedule. On April 21, 2023, the OFLC announced that it would begin accepting the revised Form in the Foreign Labor Application Gateway (FLAG) system on May 16, 2023, providing less than 30 days’ notice. It stated, filers may begin creating and staging applications in the FLAG system on April 24, 2023 (but this was not to be as the system was down for maintenance for at least 24 hours). And two business days before implementation, DOL postponed the effective date by two weeks.

The new Form is lengthier and seeks to address some of the issues that were periodically addressed by FAQs. As part of a public engagement, the OFLC conducted two webinars on April 19 and April 20, 2023, to educate the affected community on the new form and FLAG system filing process. These webinars are now available for public viewing, though frankly the webinars didn’t offer answers to many questions or address feedback in the ways some had hoped:

Clearly, the new Form will need more involvement and care in execution. Some of the new features like the self-populating prevailing wage section raise some important questions. And, while the Form appears to allow the uploading of supporting documents it does not specify any that must accompany the filing of the Application.

Unfortunately, it seems that the OFLC plans to go ahead with this update before users have had a chance to fully understand its limitations and comment on problem areas. This is similar to what happened when the program was first implemented back in 2005.

While streamlining and efficiency in adjudications is welcome news, many AILA members report significant technical and substantive issues with the new system. For example, users are experiencing significant problems with connecting previously filed prevailing wage determinations (PWD) to the online form. The new form sometimes pulls the incorrect wage from the prevailing wage determination and does not allow employers to access PWDs issued to a company’s previous law firm.  As a result, many employers will have to resort to filing the PERM via mail if DOL does not delay the implementation.  Other issues include confusion about new questions, ambiguous instructions, typos on the form and lack of visibility into subaccounts in FLAG, among others.  Rushing the implementation of PERM into FLAG will undoubtedly undermine the goals of DOL and will likely further exacerbate delays impacting the agency’s workload.

We commend DOL for listening to AILA’s request to postpone the implementation. However even with two additional weeks, it is unlikely that all the kinks will be worked out and questions answered. Simply put, the federal government needs to take a breath and stop pushing this roll-out given the challenges flagged by those both within and outside AILA’s membership. In order to give the launch the very best chance of success, a bit more time and consideration of these concerns is both desirable and warranted.