OFLC Issues Clarification on Question H.10-B "Acceptable Alternate Occupation Title" on Form ETA-9089

OFLC, Apr. 14, 2023

"OFLC is posting an announcement regarding recent permanent labor certification applications that were denied where the employer did not explicitly answer the question in field H.10-B.

OFLC has thoroughly reviewed past and current permanent labor certification (PERM) applications with respect to how question H.10-B on the Form ETA-9089 has been completed. As a result of this review, OFLC concluded that some employers have not consistently answered the question accurately by providing acceptable alternate job titles; rather, they include statements such as "see H.14 - Special Skills." The information provided in H.14 does not identify what alternate occupations are acceptable to meet the experience requirements for the job that is the subject of the PERM application. Instead, the application only lists a series of the special skills requirements and/or other alternative combinations of education and experience that the employer is willing to accept. As a result of employers providing insufficient information in either H.10-B. or H.14, OFLC has recently denied applications for being incomplete.

OFLC evaluated these denials and determined that while they are appropriate, it has not been consistent about when it denies an application for this reason, which could confuse filers. As a result, OFLC has stopped issuing denials for this issue for pending applications and will not deny for this reason for any application submitted on or before May 30, 2023, by which point OFLC expects to be accepting the updated version of Form ETA-9089 in the Foreign Labor Application Gateway system. Further, OFLC will overturn denials based solely on this issue. OFLC will identify applications that were denied for this issue and for which reconsideration has not yet been requested; employers whose applications have been denied solely for this reason and have not yet requested consideration are encouraged not to submit a request for reconsideration. Where reconsideration has been requested, OFLC will prioritize processing for any pending reconsideration requests based on denials where this is the only denial issue. In cases that have been denied for additional denial reasons, OFLC will overturn the H.10-B. denial reason but uphold the denial on the other grounds if either the employer has not submitted a request for reconsideration for the additional denial reason(s) or where the additional denial ground(s) are determined to be proper.

OFLC recognizes that as it transitions to the updated version of Form ETA-9089, which will incorporate Form ETA-9141 into PERM applications, there may be questions about whether employers should alter how they complete Form ETA-9141 as a result of this announcement. OFLC is considering that issue and will issue guidance in the near future if we determine that such guidance is necessary."