OUR IMMIGRATION SERVICESForm ETA-9089
Updated July 2026
What Form ETA-9089 Does in a PERM Case
Form ETA-9089 is used by a U.S. employer to request permanent labor certification in many employer-sponsored EB-2 and EB-3 cases. Filed through the Department of Labor’s FLAG system, it connects the prevailing wage record, permanent job opportunity, recruitment results, and employer attestations. The certified record later supports Form I-140 with USCIS. Errors involving the worksite, wage, minimum requirements, recruitment dates, or applicant review can lead to an audit, denial, or a later I-140 problem. Arvian reviews these elements before filing and evaluates whether the PERM record supports the intended immigrant classification.
What ETA-9089 Establishes in a PERM Labor Certification Case
Form ETA-9089 is the application through which a U.S. employer requests permanent labor certification from the Department of Labor’s Office of Foreign Labor Certification. It is used in the standard PERM process that supports many employer-sponsored EB-2 and EB-3 immigrant petitions.
The electronic process is administered through the Foreign Labor Application Gateway, commonly called FLAG. The filing uses Form ETA-9089 together with the applicable appendices and information connected to the prevailing wage determination. The record identifies the employer, foreign worker, permanent job opportunity, worksite, offered wage, recruitment steps, applicant-review results, and required attestations.
ETA-9089 is not simply a summary completed after recruitment. The strategy must be established before recruitment begins. The employer should first determine the actual duties, minimum requirements, work location, area of intended employment, wage framework, and intended immigrant classification. Those elements then need to remain consistent through the prevailing wage request, advertisements, recruitment report, ETA-9089, and later Form I-140 petition.
Core legal point: DOL certifies a specific job opportunity for a specific employer, foreign worker, and area of intended employment. Certification is not a transferable approval for any position the employer may later create.
DOL Review and USCIS Review Serve Different Legal Functions
The PERM process involves two agencies, but they do not decide the same questions. DOL determines whether the employer complied with the labor certification process and whether the statutory labor-market conditions are satisfied. The central inquiry is whether sufficient able, willing, qualified, and available U.S. workers exist for the offered position and whether employment of the foreign worker would adversely affect the wages and working conditions of similarly employed U.S. workers.
USCIS later adjudicates Form I-140. At that stage, USCIS reviews the requested immigrant classification, the employer’s ability to pay the proffered wage, the beneficiary’s qualifications, and the consistency of the petition with the certified labor certification. DOL certification therefore does not guarantee I-140 approval.
| Agency | Primary review | Typical risk |
|---|---|---|
| Department of Labor | Prevailing wage, job opportunity, recruitment, lawful applicant rejection reasons, employer attestations, actual minimum requirements, and PERM compliance. | Audit or denial caused by inconsistent recruitment, excessive requirements, incomplete documentation, an inaccurate worksite, or unlawful rejection of a qualified U.S. worker. |
| USCIS | EB-2 or EB-3 classification, beneficiary qualifications as of the priority date, employer ability to pay, and consistency with the certified ETA-9089. | I-140 request for evidence or denial because the worker did not meet the requirements on time, the position does not support the requested classification, or the financial evidence is insufficient. |
Who Controls the PERM Process and Who May Review U.S. Applicants
PERM is an employer-controlled labor certification process. The employer defines the permanent position, conducts recruitment, receives applications, considers potentially qualified U.S. workers, documents lawful job-related rejection reasons, and makes the required attestations under penalty of perjury.
The foreign worker is the beneficiary of the application and provides evidence concerning education, training, employment history, licenses, and other qualifications. The beneficiary must not control recruitment or participate in decisions concerning U.S. applicants.
An attorney may advise the employer about the regulations, filing strategy, recruitment documentation, permissible requirements, and whether a proposed rejection reason appears job-related. However, the beneficiary’s attorney or agent generally may not interview or consider U.S. workers for the offered position. Applicant review should be performed by the employer representative who normally evaluates candidates for comparable non-PERM positions.
| Participant | Permitted role | Important limitation |
|---|---|---|
| Employer | Defines the position, approves the wage and requirements, conducts recruitment, reviews applicants, signs the recruitment report, and files ETA-9089. | The employer may reject U.S. workers only for lawful, job-related reasons connected to the stated minimum requirements. |
| Normal hiring personnel | Interview and consider applicants using the employer’s ordinary hiring practices for comparable positions. | Standards may not be changed or applied more strictly merely because the case involves a foreign worker. |
| Attorney or agent | Advises on legal requirements, prepares filings, reviews documentation, and explains regulatory risks. | The attorney should not interview or consider U.S. workers unless the narrow regulatory exception for the employer’s normal representative applies. |
| Foreign worker | Provides accurate evidence of education, training, experience, licenses, and immigration history. | The beneficiary must not direct recruitment or decide whether U.S. applicants qualify. |
Information That Must Remain Consistent Through PERM and I-140
A defensible ETA-9089 filing depends on consistency. The employer should not treat the prevailing wage request, recruitment advertisements, ETA-9089, and I-140 as separate projects. Each document may be reviewed against the others.
The duties should describe the actual permanent position and support the selected occupational classification. They should not be copied mechanically from an occupational database or expanded after recruitment to support a higher category.
Requirements should reflect the employer’s actual minimum requirements. They should be established before recruitment, remain consistent across the PWD and advertisements, and be supported by business necessity when they exceed what is normal for the occupation.
The filing should accurately identify where the work will be performed and how any remote, hybrid, travel, client-site, or multiple-worksite arrangement affects prevailing wage and recruitment.
The offered wage must satisfy the applicable prevailing wage rules. The employer also attests in PERM that sufficient funds are available to pay the offered wage, while USCIS conducts the separate ability-to-pay analysis during I-140 adjudication.
The foreign worker generally must have met the education, training, experience, license, and other requirements of the offered position by the priority date. For a standard PERM case, the priority date is ordinarily the date DOL accepts ETA-9089 for processing.
Recruitment Timing and the PERM Document File
PERM recruitment is controlled by precise timing rules. The employer should build a calendar before placing advertisements because a correctly worded advertisement may still be unusable if it was published outside the permitted period.
For a professional occupation under the basic PERM process, recruitment normally includes a 30-day State Workforce Agency job order, advertisements on two different Sundays in an appropriate newspaper of general circulation, and three additional recruitment steps selected from the regulatory list. If the position requires both experience and an advanced degree, and a professional journal is normally used to advertise that type of opportunity, one Sunday advertisement may be replaced by an advertisement in the professional journal most likely to reach able, willing, qualified, and available U.S. workers. The notice of filing must also comply with 20 CFR 656.10.
| Requirement | General rule | Why it matters |
|---|---|---|
| SWA job order | The job order generally runs for 30 days in the area of intended employment. | Incorrect dates or the wrong geographic area can invalidate a required recruitment step. |
| Sunday advertisements | Two advertisements are normally placed on different Sundays in an appropriate newspaper of general circulation. A limited professional-journal substitution may apply when the regulatory conditions are satisfied. | The advertisement must identify the employer, describe the vacancy sufficiently, and direct applicants to the employer. |
| Additional professional recruitment | Three additional steps are required for professional occupations. Only one may consist solely of activity within 30 days before filing, and none may occur more than 180 days before filing. | The employer must preserve dated evidence showing that each selected method was actually used. |
| Notice of filing | It must generally be posted for at least 10 consecutive business days and provided between 30 and 180 days before filing. | A missing or defective notice may result in denial even when external recruitment was completed. |
| Document retention | The employer must retain the application and supporting documentation for five years from the date ETA-9089 was filed. | DOL may request the audit file after filing, and the employer must be able to produce the required evidence. |
What belongs in the audit file
- Copies of advertisements, web pages, job-order records, and publication confirmations.
- The notice of filing and evidence showing where and when it was posted.
- The signed recruitment report describing the steps taken and results obtained.
- Resumes and applications received from U.S. workers when required for the employer’s records or requested in an audit.
- Contemporaneous notes explaining lawful, job-related rejection reasons.
- Prevailing wage documentation and records supporting the worksite and wage stated in the filing.
- Business-necessity evidence when the requirements exceed occupational norms.
Actual Minimum Requirements, Business Necessity, and Current Employees
The job requirements stated in the PERM record must be the employer’s actual minimum requirements for the offered position. An employer generally may not require U.S. applicants to possess qualifications that the employer did not require from workers hired for substantially comparable positions.
Requirements that exceed the normal level for the occupation may require a business-necessity explanation. The employer should be able to show that the duties and requirements bear a reasonable relationship to the occupation in the context of the employer’s business and are essential for the employee to perform the job in a reasonable manner.
Additional issues arise when the foreign worker already works for the sponsoring employer. DOL may examine the qualifications the worker possessed when first hired, including employment as a contractor. Experience gained with the sponsoring employer may not qualify if it was obtained in a substantially comparable position, unless an applicable regulatory exception can be established.
A narrow skill list is not automatically unlawful. The issue is whether each requirement reflects the real position, was established before recruitment, is applied equally to U.S. applicants, and can be justified when it exceeds the occupational norm.
Worksite, Remote Work, Travel, and Prevailing Wage Analysis
Remote and hybrid positions require more than adding the word “remote” to an advertisement. The employer should identify the actual place or places where the work will be performed, the area of intended employment, any reporting location, and whether travel or client-site work is a real duty of the permanent position.
The prevailing wage determination, notice of filing, advertisements, and ETA-9089 should describe the same job opportunity. A later change in headquarters, employee residence, reporting requirements, client assignment, travel pattern, or remote-work policy may require a new legal analysis before filing.
| Scenario | What should be established | Potential problem |
|---|---|---|
| Fixed office position | The permanent worksite, commuting area, wage source, and location used in recruitment. | The employer uses a headquarters address even though the employee will permanently work elsewhere. |
| Remote position | The employee’s expected work location, reporting structure, and any geographic restriction. | The filing states unrestricted remote work while the wage and recruitment were based on a different geographic assumption. |
| Hybrid position | The office location, remote-work frequency, commuting expectation, and geographic recruitment area. | The actual arrangement materially differs from the PWD or advertisements. |
| Travel or client sites | The frequency, duration, destinations, and business reason for travel or off-site work. | Travel is omitted from recruitment or described too vaguely for applicants to understand the position. |
PERM Audits, Denials, and the Limits of Post-Filing Corrections
DOL may select an application for audit through its review procedures, established selection criteria, or random selection. An audit does not by itself establish that the employer violated the regulations, but it requires the employer to prove that the recruitment and filing were compliant.
Common audit issues include unusual job requirements, foreign-language requirements, combined occupations, recent layoffs, a relationship between the employer and beneficiary, worksite questions, incomplete recruitment evidence, or rejection reasons that do not correspond to the stated minimum requirements.
ETA-9089 should not be filed with the expectation that material inconsistencies can be corrected later. PERM depends on historical facts: what the position required, what the advertisements stated, where recruitment occurred, which applicants applied, and why candidates were rejected. A substantive error may require withdrawal and a new recruitment process rather than an attempted amendment.
| Problem | Possible consequence | Pre-filing control |
|---|---|---|
| Different requirements across the PWD, advertisements, and ETA-9089 | Audit, denial, or doubt about whether recruitment tested the correct job opportunity. | Approve one requirements matrix before recruitment and compare every publication against it. |
| Applicant rejection based on an unstated preference | DOL may determine that a potentially qualified U.S. worker was not properly considered. | Use only lawful, job-related requirements stated in the PERM record. |
| Incomplete recruitment documentation | The employer may be unable to establish that a mandatory step occurred. | Collect dated evidence immediately instead of reconstructing the file after an audit notice. |
| Beneficiary documents do not support the requirements | The PERM may be certified, but USCIS may issue an I-140 request for evidence or denial. | Review diplomas, evaluations, licenses, and detailed experience letters before ETA-9089 is filed. |
What Happens After DOL Certifies ETA-9089
When DOL certifies the PERM application, the employer receives the electronic Final Determination and certified filing record. The employer generally must submit Form I-140 to USCIS during the 180-day validity period shown on the Final Determination. USCIS rejects a petition supported by an expired labor certification.
If the final day of the labor certification’s validity period falls on a Saturday, Sunday, or legal holiday, USCIS accepts the petition with the labor certification on the next business day. Because this exception is narrow, the employer should not plan the filing around the final days of the validity period.
The I-140 package should include the signed Final Determination and supporting evidence showing that the beneficiary met the position’s education, experience, training, license, and other requirements by the priority date. Evidence commonly includes diplomas, transcripts, credential evaluations, and detailed letters from former employers.
USCIS also reviews the employer’s ability to pay the proffered wage. For a petition requiring a job offer, the employer generally must establish this ability from the priority date and continuing until the beneficiary becomes a lawful permanent resident, subject to applicable regulations and portability rules.
Confirm the employer, beneficiary, job opportunity, wage, worksite, priority date, appendices, and certification validity period.
Complete the signature process required for the Final Determination and I-140 filing package.
Submit evidence showing that every applicable requirement was met by the priority date.
Prepare the required financial evidence, which may include federal tax returns, audited financial statements, annual reports, payroll records, or other relevant evidence.
USCIS must receive the labor-certification-based I-140 during the applicable 180-day validity period, subject to the next-business-day rule when the final day falls on a Saturday, Sunday, or legal holiday.
Schedule A and National Interest Waiver Cases Follow Different Procedures
Schedule A occupations
Schedule A occupations do not use the standard OFLC certification and PERM recruitment procedure. DOL has predesignated certain occupations for Schedule A treatment, but the petitioning employer must still satisfy the applicable Schedule A requirements.
The employer generally submits Form I-140 directly to USCIS with a completed, uncertified Form ETA-9089, all applicable appendices, a signed uncertified Final Determination, and the required Schedule A evidence. The filing must also include a valid prevailing wage determination tracking number and evidence that the applicable notice-of-filing requirements were satisfied. USCIS reviews the labor-certification requirements under DOL regulations together with the immigrant petition.
National Interest Waiver requests
An EB-2 National Interest Waiver petition asks USCIS to waive the permanent job-offer and individual labor-certification requirements. It is not a DOL-certified PERM filing. Under current USCIS filing procedures, the NIW petitioner or self-petitioner submits the applicable Form ETA-9089 filing record directly with Form I-140, including a completed Appendix A and a signed, uncertified Final Determination, together with evidence supporting the national interest waiver request.
Do not treat these filings as interchangeable: a standard PERM application submitted to DOL, a Schedule A petition submitted directly to USCIS, and an EB-2 NIW request follow different procedures, eligibility standards, and evidence requirements.
How Arvian Reviews ETA-9089 Before Filing
A pre-filing review should test the entire employer-sponsored case, not only the fields visible in ETA-9089. Arvian examines whether the position, prevailing wage, recruitment record, beneficiary qualifications, and future I-140 evidence support one consistent immigration strategy.
Review the permanent job duties, occupational classification, EB-2 or EB-3 strategy, employer structure, worksite, remote-work arrangement, travel, and beneficiary background.
Compare the occupational code, wage level, job duties, minimum requirements, worksite information, and any additional worksites or travel details.
Build the publication calendar, define required and additional recruitment steps, verify advertisement language, and establish the employer’s applicant-review procedure.
Confirm that the employer’s normal hiring personnel evaluate U.S. workers and document lawful, job-related reasons without beneficiary control over recruitment.
Compare the draft filing with the prevailing wage record, recruitment evidence, notice of filing, employer attestations, and beneficiary documents.
Evaluate whether the beneficiary met the requirements by the priority date and whether the employer can prepare the required ability-to-pay and classification evidence after certification.
When the PERM Strategy Should Be Rechecked Before Filing
The requirements resemble the beneficiary’s résumé
A rare combination of technologies, licenses, languages, or years of experience should be reviewed for actual minimum requirements and business necessity before recruitment is completed.
The work location changed after the prevailing wage determination
A new office, remote-work location, client site, or reporting arrangement may affect the area of intended employment, wage analysis, notice of filing, and recruitment.
The case depends on EB-2 classification
The offered position itself must require EB-2-level qualifications. A highly educated beneficiary does not convert an EB-3-level job opportunity into an EB-2 position.
The beneficiary gained key experience with the sponsoring employer
Experience gained in a substantially comparable position may not qualify unless the applicable regulatory requirements and exceptions can be satisfied.
The employer recently had layoffs
Layoffs in the area of intended employment involving the occupation or a related occupation may create additional notification, consideration, and documentation obligations.
Frequently Asked Questions About Form ETA-9089
Who files Form ETA-9089?
The U.S. employer files the application, either directly or through an authorized attorney or agent. The employer remains responsible for the accuracy of the filing and the required attestations.
May the foreign worker review or reject U.S. applicants?
No. The beneficiary should not control recruitment or participate in decisions concerning U.S. workers. Applicant review should be performed by the employer’s normal hiring personnel.
How long must the employer keep the PERM file?
The employer must retain the ETA-9089 application and supporting documentation for five years from the filing date.
How long is a certified labor certification valid for an I-140 filing?
A certified permanent labor certification generally has a 180-day validity period. USCIS must receive the labor-certification-based Form I-140 during the period shown on the Final Determination. If the final day falls on a Saturday, Sunday, or legal holiday, USCIS accepts the petition with the labor certification on the next business day.
Must the beneficiary meet the job requirements before ETA-9089 is filed?
The beneficiary generally must meet the education, training, experience, license, and other requirements by the priority date, which in a standard PERM case is ordinarily the date DOL accepts ETA-9089 for processing.
Official Sources for Form ETA-9089 and PERM
- U.S. Department of Labor, Permanent Labor Certification through FLAG: https://flag.dol.gov/programs/perm
- U.S. Department of Labor, current foreign labor certification forms: https://www.dol.gov/agencies/eta/foreign-labor/forms/
- Form ETA-9089 instructions: https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/ETA-9089-Instructions.pdf
- 20 CFR Part 656, Labor Certification Process: https://www.ecfr.gov/current/title-20/chapter-V/part-656
- 20 CFR 656.10, employer attestations, participant roles, notice, and document retention: https://www.ecfr.gov/current/title-20/chapter-V/part-656/subpart-C/section-656.10
- 20 CFR 656.17, basic PERM recruitment process: https://www.ecfr.gov/current/title-20/chapter-V/part-656/subpart-C/section-656.17
- USCIS Policy Manual, Permanent Labor Certification: https://www.uscis.gov/policy-manual/volume-6-part-e-chapter-6
- USCIS Policy Manual, Schedule A Designation Petitions: https://www.uscis.gov/policy-manual/volume-6-part-e-chapter-7
- USCIS, Form I-140 filing and processing procedures: https://www.uscis.gov/forms/all-forms/petition-filing-and-processing-procedures-for-form-i-140-immigrant-petition-for-alien-workers
- USCIS, Form I-140 instructions: https://www.uscis.gov/sites/default/files/document/forms/i-140instr.pdf
- USCIS, EB-2 and National Interest Waiver requirements: https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-second-preference-eb-2
- USCIS Policy Manual, ability to pay the proffered wage: https://www.uscis.gov/policy-manual/volume-6-part-e-chapter-4
Review the PERM Record Before ETA-9089 Is Filed
A pre-filing review can identify inconsistencies while the employer still has an opportunity to correct the position, recruitment plan, worksite analysis, or evidence strategy without attempting to repair a filed application.
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