The Program Electronic Review Management (PERM) labor application process is often the first step for a foreign national to obtain a Green Card. Before a PERM labor application can be filed by a sponsoring employer on behalf of a foreign national, the labor market must be tested by placing a series of advertisements to determine if there are any qualified, available, and willing U.S. workers who are able to fill the permanent, full-time position that the sponsoring U.S. employer wishes to offer to the foreign national. There are many developments that took place to the PERM labor application program in 2024. This article will provide a summary and a forecast of what to expect in 2025.
Highlights with respect to the PERM labor application program in FY2024 (September 1, 2023 to October 30, 2024)
- Lack of Resources:
At a conference held by the American Immigration Lawyers Association (AILA), representatives from the U.S. Department of Labor's (DOL) Office of Foreign Labor Certification (OFLC) reported that FY2023 showed a record numbers of filings in all DOL OFLC programs (H-2A, H-2B CW-1, PWD and PERM). However, OFLC reported that it has not received an increase in funding to manage the increase in applications. Compounding the problem is that DOL is bound by statutory and regulatory timeframes for processing H-2A and H-2B cases which has resulted in DOL having to allocate more resources and/or personnel to these programs. The allocation of resources and personnel to the H-2A and H-2B programs has resulted in fewer personnel assigned to the PERM labor application program. As a result, this has resulted in an increase in ETA Form 9141 and ETA Form 9089 processing times. This has been an on-going issue with DOL. While DOL had considered implementing an ETA Form 9089 filing fee, it is unknown if DOL will revisit this issue. Charging an ETA Form 9089 filing fee to the public may allow DOL to hire additional personnel to assist with ETA Form 9141 and ETA Form 9089 backlogs and reduce processing times.
- Travel Requirement:
FY2024 saw an increase in Requests for Information (RFI) issued by DOL in connection with the submission of Prevailing Wage Determination (PWD) requests (Note: ETA Form 9041 is submitted to OFLC to request a PWD). This increase was due to DOL requiring more specificity as to any travel requirement required for the offered PERM position. DOL indicated that the area, frequency, and nature of the travel requirement must be specified. DOL further indicated that sponsoring employers should specify whether the travel requirement involves domestic or international travel and provide the frequency of the travel with a percentage of time. DOL has indicated that vague language such as "occasional" or "frequent" should be avoided since these may be interpreted differently. DOL also indicated that if relocation is required for the position that this should also be listed and/or described on ETA Form 9141.
RFIs issued by DOL cause delays. In addition, the sponsoring employer only has seven (7) days) to respond to an RFI issued in connection with an ETA Form 9141. If the seven (7) day deadline is missed, the sponsoring employer may need to file a new ETA Form 9141. Given the lengthy ETA Form 9141 processing times, responding timely to an RFI or avoiding an RFI entirely is critical. As a result, sponsoring employers, when describing a travel requirement for the offered PERM position, should describe 1) the nature of the travel, 2) the frequency of the travel, 3) the area the worker may need to travel to during the course of the employment, and 4) describe any relocation that may be required.
- Placing Recruitment at a Third-Party Website:
DOL has indicated that a sponsoring employer may, instead of posting the offered PERM position on its own website (in order to meet one of the three additional forms of recruitment required), it may include a link on the employer's web site that directs applicants to a third-party website hosted by the employer's payroll system or an applicant tracking system. DOL has indicated that such a set-up will satisfy the employer website advertisement requirement. However, DOL noted that the burden is on the sponsoring employer to make sure that the third-party website shows the actual employment ad. This method may only be used as a substitute for one of the three additional forms of recruitment required under the regulations. It may not be used to establish that the employer has engaged in multiple recruitment steps. For example, the set-up described above may not be used to meet the employer website advertisement posting as well as an internet job search website posting.
- Making Changes to ETA Form 9141:
DOL confirmed that changes may be made to ETA Form 9141 after submission to DOL but before issuance of the prevailing wage determination (PWD). The FLAG Technical Help Desk may be contacted to report these changes. Some of the instances which permit a correction to be made to ETA Form 9141 after submission, include:
- Successor-in-interest situations (Note: Form G-28 (Notice of Entry of Appearance as Attorney or Representative) must be submitted, including evidence of the successorship, and a statement granting permission to DOL to make the changes to ETA Form 9141.
- Change in the place of employment (Note: As long as the new work location is in the same area of intended employment or the same Metropolitan Statistical Area (MSA), the FLAG Technical Help Desk may make the change to ETA Form 9141 provided that a Form G-28 is submitted, and a statement is provided by the U.S. employer granting DOL permission to make the change. If the place of employment is outside the area of intended employment and/or MSA, a new ETA Form 9141 is required to be filed with DOL.
- DOL confirmed that if the work location changes after the PWD is issued, and the change is within the same area of intended employment and/or MSA, then the work location change is required to be noted on ETA Form 9089 in one of the free text boxes.
- ETA Form 9089 Certifications:
FY2024 was the first year in which the public began to see PERM labor certifications issued in connection with the new ETA Form 9089 filed in the DOL's Foreign Labor Application Gateway (FLAG) system. DOL began to issue these certifications in approximately June 2024. The processing time for the certifications issued by DOL with respect to new ETA Form 9089s filed in the DOL FLAG system took a little over a year. There does not appear to be anything remarkable to report with respect to the certifications issued by DOL at this time; and there do not appear to be reports of increased RFIs issued in connection with the submission of new ETA Form 9089s in DOL's FLAG system. In addition, there do not appear to be any reports of increased audits for new ETA Form 9089s submitted through the DOL's FLAG system.
The U.S. Citizenship and Immigration Services (USCIS) has indicated that the required documentation to be included with an Immigrant Petition for Alien Worker (Form I-140), based on a certified new ETA Form 9089 filed in the FLAG system, is the two-page certificate form issued by DOL, signed by the sponsoring employer, the foreign national beneficiary, and the attorney of record who processed the application. Some practitioners have reported receiving Requests for Evidence (RFE) for a copy of ETA Form 9089 and ETA Form 9141. USCIS indicated that these RFEs were issued in error and that USCIS examiners have access to the ETA Form 9141 and ETA Form 9089, so a copy of the ETA Form 9089 and ETA Form 9141 does not need to be submitted with Form I-140.
- com Decommissioned:
On June 27, 2024, OFLC announced that the FLCDataCenter.com website was to be decommissioned on July 1, 2024. The FLCDataCenter.com was DOL's database for prevailing wage data for various occupational categories. The prevailing wage data or Occupational Employment and Wage Statistic Surveys (OEWS) will be available through the DOL's FLAG system on July 1, 2024. Here is the new link to the wage data: (https://flag.dol.gov/wage-data/wage-search).
- Permanent On-Line System Decommissioned:
DOL announced in FY2024 that it would be decommissioning its Permanent On-Line System on December 1, 2024. The DOL's FLAG system was implemented as part of a technology modernization initiative and replaces the legacy Permanent Online System. It is hoped that the new FLAG system will improve customer service and modernize DOL's foreign labor certification programs.
With the decommissioning of the Permanent On-Line System on December 1, 2024, the legacy system is no longer accessible. The public is redirected to the FLAG System to submit ETA Form 9098s. PERM labor applications pending in the Permanent On-Line System after November 30, 2024, will continue to be processed by the DOL. If need to contact DOL in connection with a PERM labor application that was filed in the Permanent On-Line System, the employer should e-mail the Permanent Labor Certification Help Desk at PLC.atlanta@dol.gov.
- Schedule A:
On December 21, 2023, DOL issued a Request for Information (RFI) to the general public for input on proposed revisions to DOL's Schedule A. DOL extended this request for the public to comment on the proposed revisions to Schedule A on February 15, 2024. Schedule A is a list of occupations in which the DOL has determined there is a labor shortage. The following occupations are currently listed on Schedule A:
- Group I – physical therapists and professionals nurses; and
- Group II – immigrants of exceptional ability in the sciences or arts, including college and university teachers, and immigrants of exceptional ability in the performing arts.
If a U.S. employer wishes to sponsor a foreign national for one of these Schedule A occupations, the U.S. employer may by-pass the PERM labor application process and file a Form I-140 petition directly with USCIS.
In October 2023, President Biden issued an Executive Order (EO) titled "Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence." One provision in this EO called for DOL to review the list of Schedule A occupations and determine if there are other occupations related to Artificial Intelligence (AI) and other high-tech occupations and/or STEM (Science, Math, Engineering and Mathematics) occupations that would greatly benefit the U.S., which should be added to the Schedule A list.
After reviewing public comments submitted at the end of 2023 and the beginning of 2024, it was anticipated that DOL would issue a rule to expand the occupations listed on Schedule A to include STEM occupations, AI occupations, as well as STEM-related occupations. It was anticipated that the final rule would be issued expanding Schedule A by the end of 2024.
However, based on the recent publication of the U.S. government's regulatory agenda in December 2024, it does not appear that there will be any type of rule issued to expand the occupations listed on Schedule A anytime soon. DOL has indicated that revisions to Schedule A will be a long-term agenda item. It is unknown if the incoming Trump administration will re-examine expanding the occupations listed on Schedule A in the future.
- PERM Processing Times (as of December 1, 2024):
As of December 1, 2024, the DOL's OFLC reported the following:
:
Case Type |
Receipt Date/Priority Date |
PERM Prevailing Wage Determination (PWD) Requests |
DOL is processing PWD requests received on or before May 2024. |
PERM Analyst Review |
DOL is processing PERM labor applications with priority dates on or before September 2023. |
PERM Audit Review |
DOL is processing PERM labor applications selected for audit with priority dates on or before December 2022. |
For more information with respect to DOL processing times, please see the following:
https://flag.dol.gov/processingtimes
- PERM Processing Statistics for FY2024:
DOL has provided PERM labor application processing data for FY2024. In FY2024, DOL received 151,773 PERM labor applications, certified 102,036 applications, and denied 5,031 applications. 7,483 PERM labor applications were withdrawn. DOL has indicated that 183,776 PERM labor applications remain pending as of September 30, 2024. DOL is reporting that 0% are in audit review and that 0.6% of pending PERM labor applications are in the appeal queue. Interestingly, DOL did not provide any statistics as to how many PERM labor applications are undergoing supervised recruitment, but the data suggests that there are no PERM labor applications currently in supervised recruitment. The top occupations that were certified for FY2024 were the following: Software Developer (20.8%), Software Developer – Applications (4.5%, Computer Systems Analyst (4.3%), Meat, Poultry and Fish Cutters (2.9%), and Information Technology Project Managers (2.4%). Please see the following for more information:
https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/PERM_Selected_Statistics_FY2024_Q4.pdf
When you compare the FY2024 PERM labor application processing data with the data for FY2023 (October 1, 2022, to September 30, 2023), there does not appear to be a lot of difference. In FY2023, DOL received 158,987 PERM labor applications and certified 102,286 applications. 6,364 PERM labor applications were denied in FY2023, and 7,777 PERM labor applications were withdrawn. At the end of FY2023, DOL had 146,179 PERM labor applications still pending, split between the DOL's Case Management System (CMS) and DOL's FLAG system. At the same time, DOL reported that there were 2.8% of pending PERM labor applications in audit review and 2.0% of pending applications in the appeals queue, and 0.3% pending applications undergoing supervised recruitment. The top five occupations that were certified in FY2023 were Software Developers – Applications (22.1%), Software Developers – Systems Software (11.4%), Information Technology Project Managers (9.3%), Computer Systems Analyst (4.9%), and Statisticians (2.7%). Please see the following for more information:
https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/PERM_Selected_Statistics_FY2023_Q4.pdf
The data provided by DOL for FY2023 and FY2024 indicates that the number of PERM labor applications received and certified by DOL remains steady between the two fiscal years. Likewise, many of the top occupations certified remain the same. However, it does appear DOL has an increased number of PERM labor applications (37,595) that remain pending at the end of FY2024, as compared to FY2023. In addition, DOL data at the end of FY2024 indicates that less than 1% of PERM labor applications are in audit review or 0% are in supervised recruitment at the end of FY2024, as compared to FY2023, which had almost 3% of PERM labor applications in audit review and 0.3% in supervised recruitment at the end of FY2023. The lack of OFLC resources may be part of the reason for the increase in pending PERM labor applications at the end of FY2024 and the decrease in the number of PERM labor applications undergoing audit and supervised recruitment at the end of FY2024.
What can the public expect in 2025 with respect to PERM labor application processing?
Some of the things to watch for in 2025 with respect to PERM labor application processing may include the following:
- Imposition of a Government Filing Fee:
DOL indicated in 2024 that it lacks resources and/or personnel to process applications in connection with the PERM program and various other programs under OFLC. DOL has indicated that Congress will not likely appropriate additional money. As a result, DOL could initiate a filing fee to submit with ETA Form 9089. The imposition of an ETA Form 9089 filing fee has been proposed in the past. If a filing fee is imposed, U.S. employers who sponsor foreign nationals for Green Cards, based on PERM labor certification, will need to factor this cost into their immigration budgets.
- Propose Rule to Change How Prevailing Wage Levels are Calculated:
One agenda item shared by both the previous and incoming Trump Administrations is protecting U.S. workers and wages. In October 2020, at the end of the first Trump Administration, DOL published an interim rule that would have changed how DOL calculates Level 1 through Level 4 prevailing wage rates. This interim rule established new percentiles for each wage level, which resulted in an increase in the wage rate amounts for each. As a result of litigation that challenged the interim rule, it was not implemented, and the Biden Administration subsequently did not pursue it. The new Trump Administration may revisit this issue and attempt to impose a rule that would change how the prevailing wage amounts for each of the four wage levels are calculated.
- Increase in Processing Times:
As stated above, DOL indicated in 2024 that it continues to lack necessary resources. The number of ETA Form 9089 applications submitted by the public does not appear to be waning based on a comparison of DOL performance data. Even if the government were to impose an ETA Form 9089 filing fee to hire additional resources, it would take time to hire and train the additional resources to reduce the current backlog. Processing times for ETA Form 9141 and ETA Form 9089 applications are expected to continue to increase. In addition, if DOL is instructed by the incoming Trump Administration to shift its resources from processing to enforcement, this will increase the number of PERM labor applications selected for audit and/or supervised recruitment. If this happens, it will likely result in the transfer of personnel who have been performing analyst review of ETA Form 9089 applications to auditing PERM labor applications and/or to DOL's supervised recruitment team. This will further lead to an increase in the amount of time it will take for cases to be processed in the Analyst Review queue.
- Increase in PERM Audits and PERM Cases Selected for Supervised Recruitment:
To ensure the integrity of the PERM labor certification program, it is anticipated that more PERM labor applications will be selected for audit and supervised recruitment under the incoming Trump Administration than the Biden Administration. Because U.S. employers only have 30 days to respond to a PERM audit response, they should make sure that their PERM audit files are complete and accurate before the submission of ETA Form 9089. Besides experiencing an increase in PERM audit notifications, U.S. employers may receive additional questions and/or inquires in the PERM audit notifications for information and/or documentation, as in prior years. For example, it is possible that the PERM audit notification may require a signed affidavit from the sponsored foreign national and/or the U.S. employer that affirms the sponsored foreign national did not pay any costs and fees in connection with the PERM labor application process.
Likewise, there could be an increase in PERM labor applications selected for supervised recruitment. U.S. employers may need to budget extra funds for attorney fees and advertising costs because of the likely increase in cases selected for supervised recruitment. In addition, with an increase in PERM audits and PERM labor applications selected for supervised recruitment, there will likely be an increase in denials. This can be problematic for foreign nationals who seek an approved Immigrant Petition for Alien Worker (Form I-140), based on a certified PERM labor application to extend their H-1B nonimmigrant status beyond the six-year maximum limitation. As a result, U.S. employers may need to plan more with respect to Green Card sponsorship for the foreign national and/or start the PERM labor application process for certain employees (those approaching the end of their H-1B status) sooner rather than later in the event the U.S. employer's PERM labor application is denied and the U.S. employer has to file a second PERM labor application.
Conclusion
It is anticipated that the number of PERM labor applications filed with the DOL for FY2025 will be the same, if not higher, as in previous fiscal years is because some of the largest PERM filers reduced the number of PERM labor applications filed in FY2023 and FY2024 and/or held off filing applications entirely, because of a decline in business. This was particularly true for the high-tech industry, which experienced an increase in unemployment as compared to other industries. Many of these companies may increase the number of PERM labor applications they plan to file in FY2025, as compared to FY2024, in order to retain talent and the ability of foreign nationals to continue working in the U.S. Given DOL's current lack of resources, application processing times will likely increase. In addition, given the agenda of the Trump Administration, U.S. employers sponsoring foreign nationals for a Green Card through the PERM labor certification program will likely experience increased scrutiny of their PERM labor applications in the future.
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