AILA Blog

The Mysteries of PERM, Explained

As you know, AILA offers publications to meet the needs of its members – let me take just a few minutes to highlight one particular resource that I’ve been involved in with my colleagues – “Anatomy of ETA Form 9089” in the newly revised PERM book. This updated version reviews and comments on each section of the latest version of the ETA Form 9089 (PERM) application that the US Department of Labor (DOL) implemented on June 1, 2023.  The article not only provides practical guidance and tips, but it includes the legal and historical context of PERM issues as they arise on the application.

While DOL has assured practitioners that the substance of the PERM program has not changed, it can still be tricky as to how one responds to each of the questions.  Understanding the historical context and how DOL has addressed concerns over different issues will equip you with the best judgment in completing the ETA Form 9089. The article references regulations, relevant DOL FAQs, Board of Alien Labor Certification Appeal decisions, AILA Document Numbers, and AILA Liaison Committee minutes, practice pointers, and practice alerts.  The article allows one to focus on the specific section of the form in question and review the relevant resources available addressing that section.  Some examples follow.

  • The article contains a discussion of Matter of Modular Container Systems, Inc., 89 INA 228 (BALCA 1991) which addresses criteria for determining whether an employer is a closely held corporation and whether a familial relationship of concern exists between the employer and the foreign national.
  • DOL provided guidance on how to answer the new questions regarding dual representation and payment of fees and costs in the PERM context.
  • The article addresses issues concerning place of employment, i.e., travel, telecommuting, home office, and multiple worksites.
  • The new ETA Form 9089 asks whether an employer is willing to accept applicants with any suitable combination of education, experience, or training which is straight from Matter of Francis Kellogg, 94 INA 465 (BALCA 1998). The article not only discusses the case but walks a filer through how to respond to the different related questions on the new ETA Form 9089.
  • The prior ETA Form 9089 questions whether an employer’s requirements are “normal,” while the new ETA Form 9089 asks whether the requirements exceed the Specific Vocational Preparation (SVP) level. The article examines what this means and offers filers insight into this question and how to respond.
  • While layoffs are rising across industries, it is important to note that the PERM process poses certain requirements where a layoff has occurred with an employer. The article provides filers with guidance as to when and under what circumstances an employer may proceed with a PERM application.
  • Check out the article for practical tips on the range of labor market test/recruitment options as well.

As you look to complete a PERM application, having the latest version of the “Anatomy of the ETA Form 9089” article in the PERM Book on hand ensures you understand the legal, historical, and practical insight and guidance necessary.

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