Rapid changes in remote work requirements and availability are playing havoc with the PERM process for employers (the process under which employers must conduct a test of the U.S. labor market as part of the green card process for their foreign national employees). Due to rising unemployment and availability of U.S. workers, increased audits and scrutiny by the DOL are expected in the short and long term, making it imperative that employers have all of their I's dotted and T's crossed when completing the PERM steps.
Nowhere are the details more important than when completing the required PERM "Notice of Filing" step. Unless there is a bargaining representative based on a collective bargaining agreement, an employer must post a notice of the job opening, commonly referred to as a "Notice of Filing," for the employees at the worksite to see for 10 consecutive business days, commonly called a "wall" Notice of Filing. Employers who also run electronic or print in-house media must also, i.e., not as an alternative to a wall notice, post the notice there in accordance with their normal procedures in place for recruiting for similar positions.
During the COVID-19 pandemic, many employers have shut down corporate office operations and are requiring their employees to work remotely. Some employers have already publicized plans to keep employees working remotely or at least allow them to do so indefinitely, to be able to reduce corporate office space and to turn what is left into mere meeting and conference space, thereby saving overhead cost. https://www.nytimes.com/2020/05/12/nyregion/coronavirus-work-from-home.html
Such possibly permanent changes in worksite pose challenges for employers sponsoring foreign national workers under the PERM labor certification process. This is because the "wall" posting process is easy to complete when a corporate office worksite is known and stable, but not so when the employer requires or allows the foreign national to work remotely on a permanent basis. This is because a U.S. worker applying for the job would obviously not work from the foreign national's work location, for example, the foreign national's home office. Here, the employer should consider how the following factual alternatives impact the posting requirement based on DOL guidance, taking into account that where the employer posts the notice and recruits can impact the wage it must offer to U.S. workers.
- The employer will allow the foreign national to work remotely from anywhere in the United States (the employer should decide whether this includes only mainland U.S. or also outlying territories to avoid later surprises and confusion about this). In this case, the Notice of Filing and all recruitment steps should indicate the work-from-anywhere condition, and the employer must post the Notice of Filing at the employer's headquarters office, and conduct the other recruitment steps based on the location of the HQ (such as the state job order and the Sunday ads in a newspaper of general circulation in the area).
- The employer will allow the foreign national to work essentially 100% remotely from within commuting distance of a corporate office, in case the employer requires the occasional in-person interaction with the employee. This situation may depend on the exact facts of the required travel to the corporate office. (1) If the employer means by "commuting distance" at most a 1 to 2 hour one-way trip which the employee can take on short notice, the employer should be able to post the Notice of Filing at that corporate office, and conduct the other recruitment steps based on the location of that office, with the indication that the remote worksite must be within commuting distance of the corporate office for occasional trips to the corporate office. (2) If the employer permits travel to the corporate office from within a radius of hundreds of miles, it may make more sense to post the notice and conduct recruitment as described above under the "work-from-anywhere" situation, indicating the possible requirement of travel to the corporate office.
- The employer will allow the foreign national to partially telecommute from home regularly per week, but requires the employee to maintain and regularly work from the corporate office. This is not the same as the employer merely allowing the employee to briefly work from home only as needed (for example, to wait for a contractor – that situation is the same as pure corporate office location). In the case of only partial local telecommuting, the employer can post the notice at the corporate office and conduct recruitment based on its location, indicating the ability to telecommute from within the area of the corporate office as feasible, e.g., up to 2 days per week.
Remote and client site situations, as well as roving/traveling employee situations (and any particular combinations of them), pose significant challenges for employers sponsoring PERM applications for foreign national workers, because the DOL has not issued clear guidance making it easy for employers to understand where to post and recruit. Employers should discuss the various factual alternatives with immigration counsel to be able to balance the employer's business needs with wage considerations and the logistics of posting and recruiting for a PERM application.
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