The New PERM Form 9089: A Cure Or Quandary?
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 FGI,
September 2020
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