The NEW 9089 (PERM) Process: Substantial Changes

By Perrin Ozdemir

June 2023

General background

In April, the Department of Labor announced that it would change the system for submitting PERMs on an expedited time frame – initially, within a month of the announcement, but ultimately postponed to June 1, 2023 due to stakeholder concerns. As of June 1, 2023, we now must use the new PERM submission system for any PERM cases filed with DOL.

In the lead up to (and since the release of) the new system, Weaver Schlenger appointed a dedicated internal task force to review all changes to the PERM system and the new, glitchy technical platform for PERM submissions.

Ultimately, this is not simply a new edition of an old form. Rather, even though the essential rules governing PERM adjudications remain the same, the DOL has revised how we submit PERMs, the questions asked, the level of detail required, and the underlying technical platform we use to prepare and file PERMs.

Impact on Employers

Employers will need to provide more detailed information to the DOL, such as:

• Business necessity justification for job requirements that go beyond what the Department of Labor interprets as “standard” for the occupation. (Note that typical requirements for many technical professionals exceed the government’s “standard” requirements.)
• More comprehensive information about the qualifications of the sponsored foreign national.
• Additional details regarding worksites, telecommuting or roving.
• The number of employees in the intended area of employment (whether headquarters or separate physical offices to which the foreign national reports) at the time of filing.

Employers cannot make even minor adjustments which differ from the job details provided on the Prevailing Wage Request/Determination:

• • The new system digitally links the Prevailing Wage Determination to the PERM form so that employers will be bound by the information provided on the prevailing wage determination – typically filed 8-12 months in advance of the PERM.
  • Moreover, whereas previous versions of the PERM form under the prior platform allowed us to add minor edits or clarifications between the Prevailing Wage Determination and the PERM, the new system no longer enables us to make these tweaks

Going forward, this will require even greater care when drafting the prevailing wage request as employers will be limited to the information provided there.

Employers may be asked to perform a deeper dive into candidate qualifications during the recruitment process:

• • In some cases, the new system will require that employers agree to accept candidates who possess “any suitable combination of education and experience,” for the PERM position.
  • Generally, this has meant that employers should consider and screen candidates for the PERM position that possess enough experience and education that they could be trained to perform in the role in a reasonable period of time – even if they do not meet the exact minimum requirements for the PERM position.
  • Weaver Schlenger is continuing to assess how this requirement will impact PERM recruitment and responses using the new system.

Initially, as we continue to understand the impact of these changes and how to best position our clients to avoid audits and denials, preparing and reviewing PERM applications will warrant additional time to prepare.

• Additionally, the draft version of the form that clients review will look different, since we can only view the completed form in its final form after it has been filed. Until then, we are limited to print summary or screen shot versions.
• Since it currently takes 8-9 months for PERMs to be certified (and to, therefore, get DOL feedback), we anticipate it will be an ongoing process to optimally understand and tweak our strategies to meet the DOL’s requirements within the new technical framework. It is a little unnerving to realize the impact of decisions we make today, with minimal guidance from the DOL, may not be fully understood for months.

All of the above changes require additional time and significant legal analysis. Specifically, we are devoting additional time to:

• Fully understanding the major changes to the PERM system to avoid audits, supervised recruitment, and denials, which can jeopardize a company’s overall PERM program.
• Considering changes to how we prepare PERMs from the beginning, including how a prevailing wage request is framed in order to ensure success with the PERM filing.
• Updating the information we ask for upfront, including changes to the questionnaires and requests throughout the recruitment process.
• Obtaining more information for the cases currently underway – where the prevailing wage request has already been filed and cases are either in recruitment or preparing to be filed.

We will continue to monitor and react to new developments as they unfold.