January 2025 PERM Tip: The Problem of Evolving Job Descriptions

BIB Daily presents bimonthly PERM practice tips from Ron Wada, member of the Editorial Board for Bender’s Immigration Bulletin and author of the 10+ year series of BALCA review articles, “Shaping the Future of PERM.” Questions or comments may be sent to Ron at ron.wada@tandslaw.com. 

A fundamental reality of modern jobs is that they are constantly evolving.  This can be a problem for a PERM process that extends over a period of not months but years.  The job description (job duties + job requirements) must be drafted up front and specified in the Form ETA 9141 Application for Prevailing Wage Determination, which takes 6 months or more to be processed by DOL, then recruitment must be launched and completed, results compiled, and finally, after a year or more, the PERM application can be filed.   Maybe a year later the PERM application will be approved, or an audit is issued that prolongs the timeline even further.  Under the old Form 9141, the standards for the job description were loose, DOL’s minimal requirement was that it convey enough information to allow it to assign a prevailing wage.  So it was possible to provide a bare-bones sketch of the job description in the 9141, and a fuller job description in the ensuing recruitment and 9089 that could also accommodate minor changes in the job description, job location (e.g., a minor relocation within the same SMSA, or a modified travel requirement). 

With the adoption of the new Forms 9141 and 9089, there is no place for the job description on the 9089 PERM application; instead, DOL retrieves the job description provided up front in the Form 9141 and uses that when evaluating the recruitment effort as well as the PERM beneficiary’s qualifications.  This would not be a problem if the PERM process functioned as efficiently as originally envisioned by DOL, where the entire process could be completed within 3 to 6 months.  But the reality is that the process easily requires 2 years or more to complete.  To make the process work with the extended timeline, attorneys must become skilled at drafting job descriptions that provide sufficient detail to enable DOL to make a Prevailing Wage Determination, but are not so detailed that it cannot be read to accommodate the kinds of changes that can occur over a two or even three year period.  This elevates the drafting of a PERM job description from a mundane exercise to an exercise requiring some finesse, particularly when dealing with modern jobs in rapidly evolving technology fields.  Balancing the need for detail against the need for the job description to remain accurate over a period of years requires patience, attention to detail, and at times a dialog with the employer at the outset of a PERM project.

For further information, see: Ron Wada, “Shaping the Future of PERM – Note on Permissible Variances Between Job Requirements Shown on the Form 9141 PWD and the Form 9089,” 27 Bender’s Immigr. Bull. 2032 (Dec. 1, 2022); Ron Wada, “The Nth Degree 2023 – Degree Equivalency and the New Form ETA 9089,” 28 Bender’s Immigr. Bull. 1575 (Sept. 15, 2023).