Even before remote working considerations emerged during the COVID-19 pandemic, employers filing applications for Program Electronic Review Management ("PERM") were grappling with how to prepare Forms 9141 Application for Prevailing Wage Determination ("PWDS") and Form ETA-9089 Applications for Alien Labor Certification in the PERM context for employees who were telecommuting. The concern has grown more urgent post-pandemic, given that work-from-home arrangements appear to be here to stay. Many employees desire the flexibility of working remotely, and some employers have reduced office space with flexible hours. Indeed, some positions have become 100% remote work locations, raising concerns among Immigration Lawyers on how and where to properly conduct and document recruitment.
On July 20, 2022, the Department of Labor's ("DOL"), Office of Foreign Labor Certification ("OFLC") confirmed to the American Immigration Lawyers Association ("AILA") that in situations where the employer permits telecommuting, recruitment should be conducted using the employer's headquarters as the job location even if the remote work location is in another state. Additionally, the USDOL confirmed that concerning applications for PWDs, the OFLC prefers that mention of the requirements to reside in any particular location or that telecommuting is permitted be listed in the job duties section of the PWD form. On Form ETA-9089, permission to work remotely or the requirement to reside in a particular state or location should be listed in the special requirements section of the ETA-9089 at item H.14. For example, if the employer's headquarters are in Illinois, but the employer requires that the worker resides in any part of Texas, the recruitment should be conducted in the State of Illinois, but the required telecommuting location should be listed on Form ETA-9089 at item H.14 and on PWD form in the job duties section.
For example, if an employer has headquarters in one state but requires that an employee work in another state or area, then that restriction should be listed in the job duties Section on the PWD form and at item H.14 on the ETA-9089. Suppose the employer is headquartered in one location, but permits telecommuting on certain days of the week or for 100% of the workweek. In that case, that information should be provided by the employer in the same locations on the PWD form and Form ETA-9089.
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