The United States Department of Labor’s Office of Foreign Labor Certification announced September 25 that the agency has permanently adopted the electronic issuance of PERM labor certifications to employers and their authorized attorneys or agents. The announcement makes permanent the agency’s temporary accommodation, first announced on March 24, 2020, that PERM labor certifications would be sent by email as opposed to postal mail due to the impact of the COVID-19 pandemic. This accommodation was originally set to expire on June 30, but was later extended to September 30, 2020.
The United States Department of Labor’s Office of Foreign Labor Certification announced the agency has permanently adopted the electronic issuance of PERM labor certifications to employers and their authorized attorneys or agents.1
The announcement makes permanent the agency’s temporary accommodation, first announced on March 24, 2020, that PERM labor certifications would be sent by email as opposed to postal mail due to the impact of the COVID-19 pandemic. This accommodation was originally set to expire on June 30, but was later extended to September 30, 2020. On September 25, 2020, the DOL announced the agency has now made this practice permanent. (For prior coverage, see the following issues of GMS Flash Alert: 2020-272 (8 June 2020) and 2020-159 (8 April 2020).)
The electronic issuance of PERM labor certifications will help to improve the efficiency and turnaround times related to preparing the Form I-140, Immigrant Petition for Alien Workers, commonly used by employers to sponsor its foreign national employees for U.S. permanent residency status.
The PERM labor certification, also known as ETA Form 9089, Application for Permanent Employment Certification, is a key required document of the Form I-140 to be filed with U.S. Citizenship and Immigration Services (USCIS).
In the past, when a PERM labor certification was issued, the Department of Labor (DOL) would send the original certified ETA Form 9089 and a final determination letter on "security paper" to the employer (or an authorized attorney/agent) by hard-copy mail. The employer (or its authorized attorney/agent) would then enclose the original signed paper ETA Form 9089 with its Form I-140 application and all other supporting documents and appropriate fees to the USCIS for consideration.
In other words, employers were required to submit an original certified ETA Form 9089 issued by the DOL with their I-140 applications, unless the original labor certification was already provided to USCIS in support of a different petition.
In light of COVID-19, the DOL began the practice of issuing certified ETA Form 9089 and final determination letters by email to employers (or their authorized attorneys/agents).
With the recent announcement, the USCIS will continue to consider an electronically-issued certified ETA Form 9089 with the necessary signatures as evidence of an “original labor certification” for purposes of filing the Form I-140.
If employers (or their authorized attorneys or agents) submitted the application for permanent labor certification by mail and are not able to receive the certified ETA Form 9089 documents by email, the DOL will continue to send the original security paper certified ETA Form 9089 and final determination letter via mail.
As a result of the July 2020 Memorandum of Agreement (MOA) between the Department of Homeland Security (DHS) and the DOL, the DHS has access to all applications for permanent labor certification and DOL’s PERM online system. With the ability to directly verify the authenticity of a labor certification through the DHS electronic database, the issuance of PERM labor certifications on security paper is no longer a necessity.
In the September 25 announcement, the DOL reminds employers and their attorneys or agents to add the email address for the DOL’s Atlanta National Processing Center, email@example.com, to their address book or "safe list" to prevent emails relating to the PERM labor certification from being filtered as spam.
1 See OFLC Announces Permanent Issuance of Electronic PERM Labor Certifications (September 25, 2020).
* Please note the KPMG International member firm in the United States does not provide immigration or labour law services. However, KPMG Law LLP in Canada can assist clients with U.S. immigration matters.
The information contained in this newsletter was submitted by the KPMG International member firm in Canada.
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