3.1 What are the key aspects of the PERM system?

The PERM system imposes a streamlined and automated electronic application process, preceded by a recruitment period with a stringent list of mandatory steps and strict posting requirements. The new system will also make important changes to recordkeeping and documentation requirements. Employers will be obligated to maintain documentation of their recruitment efforts and of layoffs by the employer in the area of intended employment and in the occupation that is the subject of the labor certification or a related occupation. Such documentation will not be submitted up front with the labor certification application, but will be provided only when the application is selected for auditing by the DOL. Labor certification audits will be based on specific compliance criteria, as well as random audits for quality control purposes.

3.2 How will the PERM application process work?

The complete application process will consist of one form, the “Application for Permanent Employment Certification” (ETA Form 9089). Cases will no longer be filed at state offices. Once the regulation takes effect, labor certification applications will be filed online at a dedicated DOL website (www.workforcesecurity.doleta.gov/foreign) or may be sent by mail to one of two national processing centers. DOL has indicated in the supplemental materials to the PERM regulation that applications submitted by mail will not be processed as quickly as electronic filings. Submission of applications by facsimile transmission will not be accepted.

The ETA Form 9089 contains a number of attestations requiring a “Yes,” “No,” or “Not Applicable” response. Other questions will require that information be placed in blocks. Cases may be flagged for audit on the basis of certain factors, or simply randomly selected. The audit process may include a request for additional documentation, after which the Certifying Officer can certify or deny the application or call for supervised recruitment.

3.3 How does the employer electronically complete and submit Form ETA 9089?

The DOL website will include detailed instructions, prompts, and checks to help employers and attorneys fill out and submit the form. There is also expected to be an option to permit frequent users to set up secure files within the ETA electronic filing system. The form will be submitted electronically and will thereafter be certified electronically in a projected 45 to 60 days, unless designated for audit. Once the DOL certifies a case, the employer must print out the application and sign it. The employer must maintain a copy of the signed form in its files, and must submit the original signed form to U.S. Citizenship and Immigration Services (USCIS) along with Form I-140, the Immigrant Petition for Alien Worker. As technology advances, the DOL may require applicants to include electronic signatures on their online applications, but this is not envisioned in the immediate future.