Reconciling Unanticipated Work Locations and Telecommuting with PERM
The PERM process focuses on testing the U.S labor market within the job opportunity’s geographic area of employment to certify that U.S. workers are not displaced by hiring a permanent foreign worker for the job. (Please see the following for an overview of the PERM process: PERM FAQs) An issue that often arises in PERM is trying to get applications certified for positions that do not necessarily fall within the company’s geographic area of intended employment. This can be the case for employers that permit/require telecommuting or require their employees to work at unanticipated locations across the U.S.
Under PERM regulations, certain recruitment efforts must take place prior to filing a PERM application. The newspaper advertisement must be placed in the geographic area of intended employment; the job order must be placed with the State Workforce Agency (SWA); and a job site Notice of Filing must be posted. The prevailing wage for the position will be based on the area of intended employment as well. Further, regulations require that the employer indicate the geographic area of employment with enough specificity to apprise U.S. workers of any travel requirement and where U.S. workers will need to reside to perform the job opportunity. Essentially, we are dealing with 2 main issues: (1) Where the advertisements and Notice will be placed / what location the prevailing wage will be based on and (2) what information is required to be in the advertisement in order to properly inform U.S. workers where they will need to be located in order to perform the job opportunity.
Unanticipated Work Locations:
Unanticipated Locations: The Roving Employee (although there are different types of roving employees, this discussion will focus on those employees that are based out of the company’s headquarters, but are assigned to unanticipated client sites across the U.S. on a continuous basis)
I have dealt with many immigration cases that involve positions that will require work at various unanticipated locations. Many times, the employer will have a main headquarters where the employee is to report to, but the position itself requires the employee to be readily available to work at unanticipated locations across the U.S. These locations are usually client sites where short or long term projects will take place on a continuous basis. Once a project has ended, the employer sends its employee to the next location to fulfil another project in that same position.
According to a 1994 Department of Labor field memo (Farmer Memo) that is still relevant under the PERM system and used by the DOL today, applications involving a job opportunity that require the beneficiary to work in various unanticipated locations throughout the U.S. should be advertised for based on the location of the company’s headquarters. The suggested language to use on the PERM form, prevailing wage application, and on advertisements/notice is “will work in various unanticipated locations throughout the U.S.” Remember though that the location of the job opportunity will still be based on the company’s location, thus the company location must be in the advertisement.
This makes sense: If an employee will be roving to unanticipated locations across the country, then the geographical area of the labor market for the position is unknown. Therefore, the labor market should be tested in the area where the company headquarters is located.
This term usually indicates that an employee will work from home. Simple enough, right? Not so fast! First, telecommuting will be considered a benefit, so it must be mentioned in the advertisements. Second, the prevailing wage and the location of the advertisements/notice may depend on whether telecommuting is required or merely permitted.
I attended the American Immigration Lawyers Association (AILA) annual conference a couple of weeks ago in Washington, D.C. and the issue of PERM and telecommuting came up. The panel seemed to think that the prevailing wage and placement of the advertisements/notice depend on the terms “permitted” and “required”.
Where telecommuting is only permitted, the AILA panel explained that the prevailing wage application and the advertisements/notice placement will depend on the location of the company’s headquarters and not the location of the employee. The panel explained that this situation is similar to the situation of working in unanticipated locations in that the employee can work from any location in the U.S. at any given time, while the headquarters is the base. Therefore, the prevailing wage and advertisements/notice placement will be based on the company’s headquarters.
Where telecommuting is required, the AILA panel explained that possibly the prevailing wage and advertisements/notice placement should be based on the location of the employee (it was suggested to place the notice at the company location as well to cover all bases). For instance, if the company’s headquarters is in Houston, TX, but the position requires telecommuting from Boston, MA so that the employee can be close to a particular client, then the employer should obtain the wage and advertise for the position based on the Boston location (Placing the notice at the employee’s house and at the company’s headquarters). Although I understand the reasoning here, I take issue with this because many things can change over time. For instance, what if the employee has to move and can longer telecommute from that location or what if that client no longer continues to exist, but the position itself does? Under both scenarios, the location of the work-site has changed and thus a new PERM application would have to be filed based on the new area of employment.
The suggestions of the panel on this particular issue were not as concrete as the others they provided for roving employees and for permitted telecommuting, demonstrating how complicated this issue can be.
The PERM process is already tricky to navigate; so extra consideration should be given to these non-traditional employment opportunities. You don’t want to be stuck down the line having to start the process from scratch just because the proper employment location was not placed on the PERM application, the prevailing wage application and the advertisements/notice. That’s why it is so important to obtain proper guidance from an experienced immigration attorney when confronted with these issues.