DOL Briefing re new LCA and PERM Forms

DOL Briefing re new LCA and PERM Forms

We attended the Department of Labor (DOL) Public Briefings on Using Redesigned Labor Certification Forms held on February 04, 2009. The two (2) redesigned Forms are the LCA Form ETA 9035 (LCA Form) with will go into effect from April 15, 2009 and the Labor Certification Form 9089 (PERM Form) which will go into effect from July 01, 2009. The other big news was that effective April 15, 2009, the DOL can take up to seven (7) working days to certify a LCA. The old LCA Form can be used without the seven (7) working days processing time up to May 14, 2009. Subsequent to May 14, 2009, only the new LCA Form can be used with the seven (7) working day processing time.

Both the LCA Form and the PERM Form have been increased in length. The LCA Form has gone from 3 pages to 5 pages, while the PERM Form has gone from 10 pages to 17 pages. The DOL in both the Forms is requiring more information regarding the job title, also more details about the Employer, Employee and the Attorney. See new LCA Form ETA 9035 and new PERM Form ETA 9089.

New LCA Form ETA 9035

We have set out the main differences we found between the current and the new LCA Form ETA –9035.

The new LCA requires you to write the SOC (ONET/OES) code and the SOC (ONET/OES) occupation title for the job; in the current LCA we only have to write the DOT occupational code and job title.

The new LCA has a section for basis for the visa classification supported by the application. You have to indicate the total worker positions being requested for certification and basis for the visa classification supported by the application. There are the following categories:
New employment;
continuation of previously approved employment without change with the same employer;
change in previously approved employment;
new concurrent employment;
change of employer;
amended petition.

You have to indicate the total workers in each applicable category based on the total workers being supported by the application.

The current LCA does not include this section; you are only required to indicate the total number of H-1B/H-1B1 nonimmigrant workers.

In the new LCA, in the employer information section, you are required to indicate the Trade name/doing business as (DBA), if applicable, the current LCA does not have this requirement.

In the new LCA you are required to write NAICS code, the current LCA does not have this requirement.

There is a new section in the new LCA - Employer point of contact information -where you are required to indicate the following: full contact’s name; contact’s job; contact’s address; contact’s telephone number; contact’s e-mail address.

In the new LCA you have to write full contact information of attorney: name; address; telephone number; law firm/business name; law firm/business FEIN; state bar number; state of highest court where attorney is in good standing; name of the highest court where attorney is on good standing. This is not required in current LCA, you only have to write the name, telephone number and e-mail ID of the attorney.

In the new LCA you have to write full address of place of employment (address; city; state; county, postal code), you can write up to 3 employment locations. In current LCA you have to only indicate the city and the state of employment location.

New ETA Form 9089

1. The new ETA 9089 requests for specific information regarding the worksite of the employee, if the employee will be working in more than one location then up to five (5) Metropolitan Statistical Areas can be listed.

2. The new ETA Form 9089 allows you to write the alternative requirements in addition to the primary requirements regarding employee’s education; the Form gives you three (3) sets of alternative education requirements. The current ETA Form 9089 has only one (1) set of requirements regarding education and no alternative requirements.

3. There is a Business Necessity section in the new ETA Form 9089, which allows you to explain the following requirements: foreign language requirement; exceeding the Specific Vocational Preparation (SVP) level assigned to the occupation; job opportunity that includes a combination of occupations. In the current ETA Form 9089 there is no section allowing you to explain business necessity for all the aforementioned requirements.

4. The new ETA 9089 Form allows the employer to give a brief explanation describing the nature of the layoff and the methods of the layoff. The current ETA 9089 Form does not let you to explain about layoffs.

5. The new ETA Form 9089 allows the listing of up to three (3) sets of employee’s degree whereas the current ETA Form 9089 allows listing of only one (1) of the employee’s degree.

6. The new ETA Form 9089 allows the listing of up to 10 sets of employee’s experience; the current ETA Form 9089 allows listing of 7 sets of employee’s experience.

7. The new ETA Form 9089 allows to list any relevant completed training programs, coursework, and/or training experience (other than employment) that qualify the employee for the job opportunity for which the employer is seeking certification. The current ETA Form 9089 does not have this section.

8. The new ETA Form 9089 allows for explanation of any specific skills, abilities and proficiencies of the employee, which help establish whether the employee meets the requirements identified for the job opportunity. The current ETA Form 9089 does not have this section.

9. The new ETA Form 9089 allows for substitution of the attorney /agent signature in case if the original signer (attorney/agent) is no longer available or authorized to sign the ETA Form 9008; the current ETA Form 9089 allows only signature of the original attorney/agent.

10.The new ETA Form 9089 allows for substitution of the employer signature in case if the original signer (employer) is no longer available or authorized to sign the ETA Form 9008; the current ETA Form 9089 allows only signature of the original employer.

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