Perm Labor Certification

• Citation: Vol. 5 No. 1
• Publication year: 2023

PERM Labor Certification

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The PERM Process in the New Age of Remote Work ¹

Eddie Corona and Da'Niel Rowan ^*

Abstract: This article analyzes work-from-home schemes against the PERM regulations and Department of Labor guidance provided on the issue thus far. It discusses the Farmer Memo, relevant BALCA cases, and DOL stakeholder meetings that have helped shape the framework of how the DOL may treat PERM applications with work-from-home arrangements. It also provides PERM legal strategy insights and discusses possible strategic solutions, with authoritative justification, that may be used on related issues.

Obtaining a labor certification through the Department of Labor's (DOL) Program Electronic Review Management (PERM) labor certification process is a critical step in the employment-based green card process for most foreign workers. The statutory authority for the labor certification requires certification by the Secretary of Labor that there "are not sufficient workers who are able, willing, qualified . . . and available . . . at the place where the alien is to perform such skilled or unskilled labor." ²

Based on this statutory directive, the PERM process and the recruitment activities conducted to ascertain whether able, willing, and qualified U.S. workers are available for the position require a clear indication of the geographic area of employment with enough specificity to apprise interested applicants of any travel requirements and the place where applicants will likely have to reside to perform the job. ³ Any changes to the candidate's job location may require the entire process to start anew.

The statute and regulations did not contemplate positions that can be performed remotely from anywhere in the United States. While purely remote job opportunities were not unheard of before the COVID-19 pandemic, many knowledge workers (and their employers) have realized that they can perform their jobs without ever physically entering the employer's workspace. Employers are increasingly providing the option to work remotely to establish their competitive presence, while seeking to remain compliant with the DOL PERM regulations. These regulations do not address an employer sponsoring the permanent residence of an employee in a remote working capacity, and specifically, which geographic area of employment should the PERM process notate such that it would inform potentially able, willing, and qualified U.S. workers that the position is eligible to work remotely? The exact answer to this question

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is unclear. The DOL, through different forums, has provided outdated and limited guidance on this increasingly important topic.

Overview of Department of Labor Current Regulations Surrounding PERM Recruitment

To obtain a labor certification, an employer must certify that they have attempted and failed to identify able and willing U.S. workers in the identified geographic area of employment. The specific geographic area of employment must be listed on the prevailing wage request (Form ETA-9141), in all recruitment activities, and on Employment and Training Administration (ETA) Form 9089, the application for labor certification.

Filing Form ETA-9141, Application for Prevailing Wage Determination, is often the first step of the PERM process. ⁴ DOL regulations require that wages offered to a foreign worker must be at least the prevailing wage rate for the occupational classification in the area of employment. ⁵

Section e., Place of Employment Information, on the ETA-9141 is the first area where a worksite address must be specifically identified within the PERM context. ⁶ It is critical that this worksite address remains consistent throughout the entirety of the PERM process, because a significant change in work location may require a new ETA-9141 to be submitted. ⁷ Once Form ETA-9141 is submitted to the National Prevailing Wage Center, a prevailing wage based on the job duties and the area of employment will be issued.

Employers must attest to having conducted a series of recruitment activities prior to filing Form ETA 9089. The regulation at 20 C.F.R. § 656.17(e) details the required prefiling recruitment. The recruitment activities must be performed within the 180 days prior to filing ETA Form 9089. The activities are comprised of mandatory and additional forms of recruitment.

Mandatory Recruitment

The two mandatory recruitment activities for all applications are a job order and two print advertisements (newspaper or professional journals). These must be completed at least 30 days, but no more than 180 days, before filing the application. For both mandatory recruitment activities, it is required that they serve the area of intended employment for a period of 30 days. Specifically for the two print advertisements, the position must be advertised in the Sunday edition of "the newspaper of general circulation in the area of intended employment . . . most likely to bring responses from able, willing, qualified, and available U.S. workers." ⁸ "Area of intended employment," in turn, is defined as "the area within normal commuting distance of the place

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of intended employment." ⁹ The regulations do not provide guidance for situations in which the job can be performed remotely and therefore there is no one place of intended employment nor any commuting to a place contemplated in the arrangement.

Additional Recruitment

Other than the mandatory recruitment activities, for professional positions the employer must select three additional steps from the permissible 10 listed recruitment types outlined in the regulation. ¹⁰

The regulations specify that the advertisements must "[i]ndicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity," and further "[n]ot contain wages or terms and conditions of employment that are less favorable than those offered to the alien." ¹¹

If the employer's recruitment activities did not result in applications from qualified, willing, able, and available U.S. workers, the employer is permitted to file ETA Form 9089. Once submitted, a certifying officer (CO) at the DOL determines whether a labor certification should be issued. The CO generally interprets the law based on regulations, training, and employment guidance letters, Office of Foreign Labor Certification (OFLC) frequently asked questions and answers, and Board of Alien Labor Certification Appeals (BALCA) decisions. The information listed on ETA Form 9089 must mirror the information listed on Form ETA-9141 and the recruitment activities, importantly the job duties and requirements and the geographic area of employment.

The Farmer Memo

As referenced above, Form ETA-9141, recruitment activities, and ETA Form 9089 must indicate the geographic area of employment. However, the regulations do not specify how to complete the forms for "roving employees," for which there is an unclear or undetermined worksite. This traditionally occurred when an employee was required to be onsite at client sites, and those sites changed based on the contract and projects. In today's workforce, this can also occur when an employee works remotely from a home location and their work is not dependent on their location. It can further be an employee who primarily works from home but who is required to go into an office owned by the employer for a specified number of days or a client site that could change based on work assignment.

On May 16, 1994, Field Memorandum 48-94 (known as the "Farmer Memo") was issued by the DOL Administrator for Regional Management to

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provide guidance on issues pertaining to the labor certification process. ¹² The memo was intended to consolidate policy interpretations provided by the DOL over the previous year. One such issue pertained to "applications where aliens will be working at various unanticipated sites." The text reads in part:

Applications involving job opportunities which require the beneficiary to work in various locations throughout the U.S. that cannot be anticipated should be filed with the local Employment Service office having jurisdiction over the area in which the employer's main or headquarters office is located.
In Item 7 (address where alien will work) of part A of the Application for Alien Employment Certification, the employer should indicate that the alien will be working at various unanticipated locations throughout the U.S. A short statement should also be included explaining why it is not possible to predict where the work sites will be at the time the application is filed.

While the exact facts prompting this guidance are unclear, what was clear was that the Farmer Memo was intended to fill the gap for "roving employees" whose geographic area of employment was undetermined due to the nature of the employee's working arrangements. The Farmer Memo instructs employers to list the headquarters of the PERM-sponsoring employer and to indicate on the labor certification application that the employee may also work out of various unanticipated locations throughout the United States. Furthermore, it gave clarity that all recruitment activities should also be conducted from the headquarters address, since there is no specific geographic area of employment that can be used to conduct recruitment activities for roving employees. The Farmer Memo also provided that prospective U.S. worker applicants must be given notice that the position required working at various unanticipated work locations throughout the United States. The memo alluded to "various client sites" rather than telecommuting or working from home. It is reasonable to conclude that the Farmer Memo was issued only in the context of labor at "various client sites" rather than working from home and "telecommuting," as this concept was incredibly rare, possibly unheard of, in 1994.

The COVID-19 pandemic...