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DOL Announces Updates on Compliance and Upcoming PERM-based Green Card Changes

Posted July 29, 2020Cheryl Kilborn - Sr. AssociateArticles, Green Card

With temporary office-closures and work-from-home becoming the new normal, immigration attorney’s and the company’s they represent, have struggled to interpret Department of Labor (DOL) guidance on compliance with respect to PERM sponsorship. This struggle actually started in 2005, with the roll out of the PERM program, but has been further exacerbated by trying to adapt modern practices to antiquated regulations not designed for the new normal.

On July 23, 2020, DOL announced during an Open Forum at AILA’s virtual annual conference, several key updates to assist with interpreting and complying with PERM regulations:

  • DOL confirmed that the PERM Notice of Filing (NOF) requirement can be satisfied by posting the NOF on the exterior door of the office building, even if the building is closed and all employees are remote, so long as the business is operational (i.e., conducting business). DOL further confirmed that an electronic NOF posting is not required nor is it sufficient
  • On Monday, July 20, 2020, DOL released the new proposed ETA-9089, which is out for notice and comment. DOL explained that the proposed ETA-9089 was drafted in consideration of all documents and BALCA decisions it had on file to integrate as much information into the form itself to limit confusion (such as when to use the Kellogg language) and to limit the number of cases that are being audited for routine things such as business necessity
  • DOL also confirmed that the new ETA-9089 will be rolled out in FLAG (and that the current system will be decommissioned). Simultaneously, DOL released the new proposed ETA-9141, which is also out for notice and comment. The ETA-9141, which is currently already in FLAG, will auto populate into the new ETA-9089, thereby preventing transcription errors that have previously served as a basis for denial of PERM applications

Shifting to the FLAG system is expected to cut down on the amount of time it takes DOL employees to perform adjudication tasks. That said, DOL stated that it is impacted by diminished funds and because of an increase in PERM filings this year, longer processing times should be expected next year.

Firm Insight: Some proactive steps that can be taken to minimize processing delays include posting the NOF now even if the office is physically closed; filing PERM applications as early as possible before the new forms and FLAG system are required; and getting familiar with the new ETA-9089 and ETA-9141 by reading the form instructions that DOL spent a considerable amount of time drafting to get clarity on what DOL requires for future PERM filings with the new forms.

Please reach out to your designated Meltzer Hellrung attorney with any questions or contact our firm at: consultation@meltzerhellrung.com.