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 posed 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

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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