By Pam Prather
We’ve all heard the sage advice regarding real estate, that the three most important considerations in purchasing are location, location, location. Well, that’s kind of true in many employment-based permanent residency cases, too.
One of the first things you do when a client hires you to do a PERM application is to strategize the case. And one of the first steps in strategizing is figuring out the location for which you will file the Prevailing Wage and test the job market. Many times this is quite simple, and you can immediately move on to the next steps. In other cases, however, “Where”? is not such an easy question to answer.
This is an important issue, because:
The Immigration and National Act, 8 U.S.C. § 1182(a)(5)(A), provides that “[a]ny alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is excludable, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that…there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor ..” Thus, the Department of Labor’s regulations require an employer to prove through a test of the labor market that that there are not sufficient workers in the United States who are able, willing qualified and available at the time of application for a visa and admission into the United States and at the place where the alien is to perform the work, and that employment of the alien will not adversely affect the wages and working conditions of United States workers similarly employed. (emphasis added) (Paradigm Infotech, 2007-INA-3,4,5 and 6 (June 15, 2007).
For roving employees, tele-workers, traveling salesmen, etc., there really is no “home” for their job. But just as they have lagged behind in responding to other changes in the contemporary workforce, the Department of Labor (DOL) has not yet fully addressed this issue when it comes to Labor Certification. Sometimes, Immigration practitioners have had to play a “let’s see if this will work” game with the DOL Alien Employment Certification office.
For most of us, guidance on this issue began with the Employment Training Adminstration’s (ETA’s) Memorandum of May 16, 1994. In it, the government provided instructions regarding labor certifications (pre-PERM) which stated “applications involving job opportunities which require the alien 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.”
Of course, nothing is ever that simple in immigration law. The Board of Alien Labor Certification Appeals (BALCA) has also ruled that “the mere presence of an employer in a location is not, in itself, sufficient justification for filing the labor certification from that location”. If the location is thought to be too rural, or has a Prevailing Wage that is significantly lower, or the employer fails to conduct recruitment on a national scale, DOL has been know to “kick” the application out. If the address of the work site is the same as the alien’s home address, the PERM is likely to pick that up for audit. These scenarios are not necessarily bad, because at least they give you the opportunity to explain case details more clearly. Naturally, though, an audit response can add significantly to the overall processing time.
Some cautious practices can help quite a bit when a job location is in question. You can get a Prevailing Wage for possible work sites, and make sure the employer offers a salary that matches the highest one. You can ensure that the recruitment campaign is widespread – even national. You can post Notices at as many sites as the employer will provide. These are ideas to take into consideration when strategizing your case, and analyzing risk versus benefit.
Hopefully we’ll soon have a Department of Labor that truly understands our modern employment practices. It would be great to have job descriptions, wage reports, recruitment guidelines, etc. that better reflect today’s market.
Until then, remember – wherever you go, there you are…..