U.S. employers filing PERM (Program Electronic Review Management) Labor Certification Applications are now facing increased scrutiny regarding how they disclose travel-related job requirements on Form ETA 9089. Recently, the Department of Labor (DOL) has begun denying PERM applications—without audit—for allegedly incomplete or inconsistent disclosure of travel requirements.
The DOL now appears to take the position that any travel requirement, regardless of significance, must be disclosed as a separate worksite location on Form ETA 9089. This shift is concerning, as the agency had approved applications without such detail for the past two years and has provided no formal notice of this change in adjudication practices.
So far, the following specific issues have been identified:
- Travel is mentioned in recruitment advertisements and the Form ETA 9141 Prevailing Wage Determination, but omitted from the worksites listed on Form ETA 9089.
- Travel requirements are vague or broadly defined, prompting DOL questions about the frequency, nature, duration, and purpose of the travel.
- Various worksite locations are listed without sufficient specificity, leading the DOL to question the intended area(s) of employment.
The American Immigration Lawyers Association (AILA) has acknowledged this trend. However, despite continued advocacy, the DOL has not modified its position to date.
Recommended Steps:
McLane Middleton recommends that employers with pending PERM applications involving travel—where specific locations are not listed as worksites on Form ETA 9089—consider filing a new Prevailing Wage Request (PWR) with the DOL as a precautionary measure. For any broad or undefined travel requirements, employers should refine these details before submitting a new PWR.
For future PERM applications, employers should carefully evaluate whether travel is a regular and essential part of the position and include it as a requirement only when appropriate. In today’s environment, employers should anticipate continued heightened scrutiny of PERM applications and beyond. If you have questions or would like more information, please click here to contact a member of our Immigration team.