DOL Prevailing Wage FAQ Update: Alternative Job Requirements for PERM

The DOL has recently updated the Frequently Asked Questions (FAQ) relating to the prevailing wage program. The biggest change to PERM PWDs in the revised FAQ is the need for an employer to list alternative job requirements when requesting a PWD. Before this revised FAQ was issued an employer would list only the minimum job requirements without noting what suitable alternatives (if any) would be acceptable for a position. Just because alternative job requirements will not affect a PWD no longer means that they should not be listed on ETA form 9141. Any set of requirements that an employer deems acceptable for a position must be listed when requesting a PWD.

The DOL FAQ states that the listing of alternative requirements will not affect the PWD. The requirements that an employer lists as its primary requirements will still be used to make a prevailing wage decision. However, the listing of suitable alternative requirements is deemed necessary by the DOL in order to have consistency between recruiting material, PWDs, and PERM application forms. This essentially means that if an employer will list certain job related information on ETA form 9089 when filing a PERM, he/she should likewise put this information on ETA form 9141 when requesting a PWD.

The updated FAQ states that when alternative job requirements are listed for a PWD the DOL will not investigate whether or not the alternative requirements are substantially similar to the primary requirements at this stage of the petition process. A PWD is issued by the National Prevailing Wage Center (NPWC) which does not evaluate the equivalency of job requirements for a PWD. However, if the job requirements are not substantially similar this will pose a major problem once a PERM application is submitted.

Example: An employer is filing a PERM application for an alien beneficiary. The employer’s main requirement for the position is a bachelor’s degree and no extra experience. Alternatively, the employer will accept, in lieu of an applicant with a bachelor’s degree, an applicant with no degree and 12 years of job related experience. When requesting a PWD the employer will list both the main (bachelor’s degree + 0 years experience) and alternative (no degree + 12 years experience) requirements on ETA form 9141. The PWD for the position will be based only on the main requirement of a bachelor’s degree. The fact that the two requirements are not substantially equivalent in terms of overall years will not be an issue in receiving a PWD, even though this discrepancy will cause problems later in PERM filing.

It is important to keep this new requirement in mind when filing a PERM petition. The DOL’s increased focus on consistency across PERM forms requires extra attention to detail to ensure that a petition is approvable. Just because listing alternative requirements that are not similar to the main requirements will not affect a PWD does not mean employer flexibility. This new FAQ means that a petitioning employer must have a good amount of foresight when beginning a PERM application. Requesting a PWD is one of the earliest stages in the PERM process. Recruitment and final application of a PERM petition all must be done within the validity period of a PWD. Therefore the updated FAQ means that the alternative requirements that are listed for a PWD must also be listed when a PERM petition is submitted. Anything listed on a PWD early in the recruitment process will have to be listed at the end of the process as well. If the alternative requirements are not substantially similar or an employer fails to list the alternative requirements in either of the PERM forms a recruiting process based on a faulty PWD will be in vain as the PERM petition will likely be denied.

When starting a PERM process and requesting a PWD it is highly recommended that a petitioning employer or alien beneficiary contact an experienced attorney with extensive PERM familiarity. The more and more consistency that is required by the DOL in PERM petitions requires more and more attention to subtle details that may not be apparent to those without PERM experience.

For more information on PERM Labor Certification, please visit our library on PERM Labor Certification and our recent PERM articles.