If law is an art and not a science, PERM is a gamble and not an art. Uncertainty is prevalent throughout PERM processing, starting with the request for prevailing wage.
The PERM Rule provides that a Prevailing Wage Determination (PWD) may be requested either before or after recruitment has begun. Most employers play it safe by filing the request first to obtain an official determination of the correct occupational code and wage – a safe harbor as it were – and then engage in recruitment only after a PWD has been issued.
Employers may suggest occupational codes and wages when they fill out Form 9141 “Application for Prevailing Wage Determination.” Since real jobs do not fall squarely within one code or another, determinations are often made upon combinations of job duties based on two or more occupations.
DOL guidance mandates that, when two or more occupations are involved, the higher occupational code and corresponding wage obtains, even if a considerable proportion of duties in the job offer corresponds to a lower occupational code and wage.
Because of lengthy PWD processing times (sometimes up to five months), employers are tempted to begin recruitment before receiving an official determination for the occupational code and wage.
Despite the uncertainty of getting started without Uncle Sam's blessings, employers may choose to gamble and second-guess DOL by calculating their own unofficial code first and then file an official PWD request one day after recruitment has begun, thus reducing overall processing time.
Is it a sure bet? It may be if the employer is experienced with all the characteristics of the job offer -- minimum requirements, duties, and wage levels -- however, if the employer's hunch is wrong, recruitment efforts might fail to synchronize with a subsequently issued occupational code and wage determination.
Even if employers bet on the wrong occupation code and official wage, they may beat the odds because most PERM recruitment campaigns do not require the inclusion of technical job information issued in response to filing Form 9141.
Only the Notice of Filing (NOF) – the ten-day posting at the worksite and in-house media notice – requires an official PWD. Since the NOF is not a form of recruitment, a corrected NOF can be posted again at any time for ten additional days at any time with little inconvenience to anyone.
In fact, savvy employers can usually craft PERM recruitment campaigns, including job duties, minimum requirements, and special skills, to match expected PWDs.
The only possible requirement for inclusion of the official wage in recruitment efforts is the 30-day job order in state job banks as many states, but not all, require a wage or wage range to place the order. Even when the PWD does not match the employer's best guess, new 30-day job orders can be placed without expense, to conduct additional recruitment efforts before proceeding to put a new occupational classification, wage, and PWD determination protocol code onto the PERM Form 9089.
Standard procedure across the U.S. is to file Form 9141, wait many months to receive an official determination, and then proceed to recruitment – a very time-consuming process. The inverse may be a safe alternative that offers significant acceleration of the PERM process when time is of the essence for employers -- provided they know how to make a safe bet!
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
