BIB Day by day presents bimonthly PERM observe suggestions from Ron Wada, member of the Editorial Board for Bender’s Immigration Bulletin and creator of the ten+ 12 months collection of BALCA overview articles, “Shaping the Way forward for PERM.” Questions or feedback could also be despatched to Ron at ron.wada@tandslaw.com.
A basic actuality of recent jobs is that they’re continually evolving. This could be a drawback for a PERM course of that extends over a interval of not months however years. The job description (job duties + job necessities) have to be drafted up entrance and specified within the Kind ETA 9141 Utility for Prevailing Wage Willpower, which takes 6 months or extra to be processed by DOL, then recruitment have to be launched and accomplished, outcomes compiled, and at last, after a 12 months or extra, the PERM utility might be filed. Perhaps a 12 months later the PERM utility might be accredited, or an audit is issued that prolongs the timeline even additional. Underneath the outdated Kind 9141, the requirements for the job description had been free, DOL’s minimal requirement was that it convey sufficient info to permit it to assign a prevailing wage. So it was potential to offer a bare-bones sketch of the job description within the 9141, and a fuller job description within the ensuing recruitment and 9089 that might additionally accommodate minor modifications within the job description, job location (e.g., a minor relocation throughout the similar SMSA, or a modified journey requirement).
With the adoption of the brand new Kinds 9141 and 9089, there isn’t a place for the job description on the 9089 PERM utility; as an alternative, DOL retrieves the job description offered up entrance within the Kind 9141 and makes use of that when evaluating the recruitment effort in addition to the PERM beneficiary’s {qualifications}. This might not be an issue if the PERM course of functioned as effectively as initially envisioned by DOL, the place your entire course of may very well be accomplished inside 3 to six months. However the actuality is that the method simply requires 2 years or extra to finish. To make the method work with the prolonged timeline, attorneys should grow to be expert at drafting job descriptions that present enough element to allow DOL to make a Prevailing Wage Willpower, however should not so detailed that it can’t be learn to accommodate the sorts of modifications that may happen over a two and even three 12 months interval. This elevates the drafting of a PERM job description from a secular train to an train requiring some finesse, significantly when coping with trendy jobs in quickly evolving know-how fields. Balancing the necessity for element in opposition to the necessity for the job description to stay correct over a interval of years requires persistence, consideration to element, and at instances a dialog with the employer on the outset of a PERM undertaking.
For additional info, see: Ron Wada, “Shaping the Way forward for PERM – Observe on Permissible Variances Between Job Necessities Proven on the Kind 9141 PWD and the Kind 9089,” 27 Bender’s Immigr. Bull. 2032 (Dec. 1, 2022); Ron Wada, “The Nth Diploma 2023 – Diploma Equivalency and the New Kind ETA 9089,” 28 Bender’s Immigr. Bull. 1575 (Sept. 15, 2023).
