Department of Labor Resumes LCAs, PERM Processing for Employers
Employers can once again file labor certification requests for nonimmigrant workers (including H-1B applicants) and continue the PERM process for thousands of Green Card applicants.
On October 31, the Foreign Labor Application Gateway (FLAG) resumed operations after going offline on October 1 due to the ongoing government shutdown.
The last time the Department of Labor continued to work despite a government shutdown was in December 2018. In September that year, Congress had already set the agency’s budget. Because they had already secured funding, the DOL did not close during the shutdown and continued to process applications while other departments remained closed.
The DOL’s announcement this year did not explain why the FLAG system reopened during the ongoing government shutdown. “It is possible that there has been significant pressure from the tech and agricultural industry to resume processing of such cases as soon as possible to maintain strong economic and business continuity,” says Nicole Gunara, Principal Immigration Attorney at Manifest Law. Another factor may include internal concerns over the growing potential of a severe backlog should the shutdown be prolonged further.
Employers can now resume labor certification for H-1B visa applications
The FLAG portal allows employers to file Form ETA-9035, the Labor Condition Application. This petition declares the wages of a temporary foreign worker, such as an H-1B or E-3 holder. The ETA-9035 also confirms fair working conditions for both U.S. and foreign workers.
LCAs are critical to an H-1B visa application. Before an employer can file Form I-129, they must get an approved LCA from the Department of Labor. “Having an approved LCA essentially opens the door for an H-1B petition,” said Gunara. “Having FLAG back online means businesses can finally restart that process.”
| ➡️ What’s changing with the H-1B visa? Read our ongoing coverage of recent H-1B news, from FAQs about the $100K H-1B fee to the DHS’s new proposed weighted H-1B lottery. |
PERM and prevailing wage determinations resume; processing delays are expected
With FLAG back online, employers can now file for prevailing wage determinations (PWDs). This establishes the minimum wage a company must pay to a foreign worker. Without a PWD, employers cannot begin filing for employment-based green cards like the EB-3. In most cases, the DOL obtains wage data from other employees in the area and field to establish the minimum rate.
Employers can also request permanent labor certification (PERM) by filing Form ETA-9089. This form certifies that an employment-based immigrant’s job fills a niche that a U.S. citizen cannot. An approved ETA-9089 also confirms that hiring a foreign worker won’t hurt the wages or working conditions of similar American employees.
Despite many services resuming, the DOL warns that employers should anticipate delays in processing. “Anytime there’s a shutdown, it creates a ripple effect,” said Gunara. “Companies should avoid waiting until the last minute to submit time-sensitive filings.”
The DOL has also restored its seasonal foreign worker portal. With it, employers can file applications and submit job orders for future H-2A and H-2B holders to apply for.
What should employers expect now that FLAG has reopened?
Employers can resume filing Form ETA-9035 for LCAs now that they can access FLAG again. They can also request prevailing wage determinations and PERM certifications for future green card holders.
While employers may not see rapid responses from the DOL, they can still prepare and submit documents through FLAG. Companies should consult with their immigration attorneys on how to best mitigate delays, such as filing early and tracking processing updates.
Need help filing an LCA or PERM certification? Our team of experienced immigration lawyers can help you. Request a consultation today to begin onboarding foreign workers.
