Office of Foreign Labor Certification (OFLC) Issues a Decision on Question H.10-B “Acceptable Alternative Occupation Title” on Form 9089

OFLC has evaluated denials of PERM applications based upon the employers’ answers to Question H.10-B “Acceptable Alternative Occupation Title” on Form ETA 9089 and determined that these denials were appropriate. However, OFLC also acknowledges that it has not been consistent in its denials, which has led to confusion among employers. 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 the updated version of Form ETA 9089 in the Foreign Labor Application Gateway system should be effective. Further, OFLC will overturn denials based solely on this issue. Denials of Form ETA 9089 based on this ground were predicated on the determination by OFLC that Question H.10B was being answered incorrectly when employers entered statements such as “See H.14 – Special Skills.” OFLC justified these denials by stating, “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 expects to issue guidance in the near future, if necessary, to clarify how employers should incorporate this information in pending Form ETA 9141, Prevailing Wage Determinations into the new version of Form ETA 9089.