The US Department of Labor (DOL) has proposed long-needed changes to the PERM Form 9089 which has been in use since March 30, 2005. As the original form was new back then, there was little opportunity for feedback from users before its publication. Now, however, stakeholders have been invited to provide comments before the final version of the new form is approved.
Although many of the new features are favorable, there are some important changes that may have an adverse effect on future applications for PERM. For example, some of the fields from the Prevailing Wage Form 9141 will automatically populate on the new PERM Form 9089, thus eliminating possibilities for typographical errors. Since Form 9141 is not being updated at this time, however, insufficient or conflicting information placed by employers first on Form 9141 and then on Form 9089 will continue to plague employers.
The first notable issue is the obligation to include travel requirements. The term ‘travel' is not defined in the regulations and has been subject to sudden changes in interpretation by DOL. Over the last 15 years, work environments such as home office, telecommuting, and relocations have been tagged as travel, and, although there is not really any travel involved, PERM applications have been routinely denied for failure to list these job conditions as forms of travel.
Form 9141 also has no dedicated field in which to indicate alternative requirements for the job, and the current Form 9089 lacks adequate instructions for inclusion of the requirement on the form. Unfortunately, this faulty field phenomenon will continue to spell failure for some employers, who forget to include alternate requirements in the Prevailing Wage Request on Form 9141, do not know where to type them on that form (which has no space provided for this purpose), or who may express the alternate requirements in a manner which is unacceptable to the DOL.
Questions about alien influence in PERM applications always need to be addressed with great care, and owners, officers, and their relatives who apply for PERM certification are subjected to strict scrutiny to determine if the job offer is bona fide. The DOL generally does not approve applications for foreign workers if they are of special interest to employers because US applicants must be considered fairly, without any favored treatment for foreign workers being sponsored. The question on the PERM Form 9089 about special relationships is pos\ed in the present tense, but if an employer removes a foreign worker from a position of influence before filing a PERM application, allegations of misrepresentation against the employer may follow. The opposite is true when filing applications with other branches of the governments. For example, it is perfectly legal to marry, divorce, or separate on a specific date to minimize taxation.
Until DOL updates Form 9141 as well as Form 9089, the mistakes made on one form will be visited on the second form as well!
Originally published by Fakhoury Global Immigration, September 2020
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