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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. Copyright 2024 Ron Wada, All Rights Reserved.
How to describe travel requirements for roving employees on the DOL Form ETA 9141 Application for Prevailing Wage Determination – Jobs that are not conducted at a fixed worksite can present a headache when preparing a PERM application if the travel requirements are not expressed in a way that DOL will understand and accept. The Application for Prevailing Wage Determination (Form 9141) explicitly requests at F.d.3:
“Will travel be required in order to perform the job duties?
Travel requirements must be disclosed in recruitment ads and on PERM applications, yet DOL has offered only minimal guidance on how an applicant should express travel requirements, or why the agency believes that a description of travel requirements is relevant to determining the prevailing wage for any given occupation. In fact, as acknowledged by BALCA the regulations governing prevailing wage determinations do not mention travel, so there are no applicable rules! The only guidance issued on this topic by DOL is the 1994 Barbara Farmer Memo, and over the 30-year period since the Farmer Memo was issued, DOL has repeatedly referred back to it, stretching its terms to cover a variety of travel-related matters not originally envisioned including the modern advent of telecommuting.
Given the limitations of an online form, the need for economy of expression in recruitment advertising, a simple format for expressing travel requirements that addresses location and frequency of travel is needed. For example, “travel required to unanticipated locations throughout the U.S. up to 3 days per week” is a compact phrase that addresses both location and frequency of travel. The absence of clarifying guidance from DOL means that attorneys have no choice but to proceed on a trial-and-error basis until patterns emerge as to what DOL will and will not accept in specific circumstances. What is important to note is that the Form 9141 clearly signals that as a minimum DOL requires information on both geographic location and frequency of travel.
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COPYRIGHT 2024 RON WADA, ALL RIGHTS RESERVED.