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IMMIGRATION APRIL 14, 2023 | The Indian Eye 39

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period, even if the DOL ultimately In general, it is a best practice list the experience in the same way in denied PERMs based on how H10-B
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certifies the PERM. On the other to ensure that the Prevailing Wage H.10-B. Alternatively, the employer was completed to submit RFRs, un-
hand, if the PERM was filed one year Determination on Form 9141, all re- may include the “magic” language as til this issue is resolved, employers
or more prior to the end of the sixth cruitment, and the ETA 9089 itself suggested by OFLC to AILA in its must also find ways to prevent fur-
year, the PERM that is the subject of use identical language. While it would November 17, 2022 guidance by stat- ther denials by drafting the language
an RFR is still considered pending easier said than done for the employ- ing in ETA 9089 H.10-B “any occu- in H.10-B to hew as closely as possi-
and can provide the basis for a one- er to start all over again by requesting pation in which the required experi- ble to the DOL guidance provided to
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year H-1B extension under § 106(a) a new Prevailing Wage Determina- ence or skills were gained as specified AILA while also not veering too far
of the American Competitiveness in tion if the language is not consistent in H.14” . H.14 can list the skills or off from the way the requirements
the 21st Century Act. Moreover, with DOL’s latest guidance, obtaining experience required for the position have been listed in the prevailing
immigration lawyers and their cli- a new 9141 Prevailing Wage Determi- that was stated in the advertisements wage determination and ongoing re-
ents who process many PERM ap- nation could take 12-14 months. If the or the prevailing wage request. This cruitment.
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plications have been left wondering prevailing wage request is pending modification would likely not be in- [This blog is for informational purposes
whether other pending PERM appli- and indicates experience rather than consistent with the way the job re- only and should not be considered as a
cations that use the same language titles that have resulted in denials, or quirements were set forth in the 9141 substitute for legal advice]
for question H.10-B will be denied. If if the advertisements are already run- or the recruitment.
that is so, then employers should con- ning with that language, it would be Although it is salutary that the *Kaitlyn Box is a Senior Associate at
tinue to file RFRs each time there is defensible to not change course and DOL has allowed employers with Cyrus D. Mehta & Partners PLLC.
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a denial. If a Prevailing Wage Re-
quest or recruitment such as job or- _________________________________________________________________________________________________________
ders and newspaper ads are already Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta &
in progress and use general language Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Com-
like “5 years of experience in the mittee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary
biotechnology industry”, it is hoped Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member
that DOL will no longer deny such a of Volunteers for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the
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PERM in light of its announcement Board of Trustees of the American Immigration Council and former chair of the Committee on Immigration and Nationality
that employers may file RFRs. It Law of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including
would be in violation of the Adminis- on ethics, and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and
trative Procedure Act for the DOL to Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law
deny pending and future applications and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the
immigration field. He has also received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among
without notice and the opportunity to the most highly regarded lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked
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in Chambers USA and Chambers Global 2019 in immigration law, among other rankings.

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