Along for the Ride – Steering Through DOL’s Muddy Green Card Directives

Meredith W. Barnette, Esq., Partner
[email protected]

For "green card" cases requiring the electronic filing of an attestation-based application (ETA Form 9089, Application for Permanent Labor Certification, "PERM") with the U.S. Department of Labor (DOL), part of the attestation made by filing this form is that the employer tested the labor market and found no able, willing, qualified, and available U.S. workers. In testing the labor market the DOL expects that employers describe the job opening in a manner that fully apprises U.S. workers of the job opportunity. Many Requests for Review of PERM denials filed with the Board of Alien Labor Certification Appeals (BALCA) concern what must be listed in advertisements in connection with the labor market test in order to adequately apprise U.S. workers of the job. In most cases, it is clear that the employer's name, the job location and title, and the minimum requirements must be described. However, much confusion has arisen over if and how special job aspects such as travel, telecommuting, unusual work schedules, embedded work, roving work and relocation need to be described and advertised.

The DOL has long held that travel must be listed in newspaper ads and on the Notice of Filing. In fact, a recent BALCA panel decision, Matter of IT Works International, Inc1. affirmed the Certifying Officer's PERM denial stating that "although not every term and condition need be included in advertisements, it is clear through the regulations and FAQs that travel requirements always need to be included in advertisements." However, the DOL has not issued clear directives regarding how to describe travel and other special requirements like working at unanticipated locations. Instead, DOL representatives frequently refer to Section 10 of the "Barbara Farmer" memo. The "Barbara Farmer" memo was a Field Memorandum issued in 1994 by then Administrator for Regional Management to clarify issues in connection with labor certification and how to file applications in which the beneficiary will work in various locations throughout the U.S.2 In March 2005 the labor certification program was replaced with the Program Electronic Review Management (PERM) system, many years after the Barbara Farmer memo. Job descriptions and technology affecting job duties evolve and change, but the DOL continues to refer to the Barbara Farmer memo and to deny PERM applications that do not clearly describe these job aspects. Instead of issuing clear directives concerning multiple worksites, travel and other special job aspects, the DOL typically denies PERM applications and lets BALCA determine through sometimes conflicting panel decisions how and when these requirements must be described and included. Appeals are made to BALCA by filing a Request for Review following a denial by the DOL's Certifying Officer (CO), usually after the CO has reviewed the PERM application and all supporting documentation in an audit response.

Since the beginning of PERM, there have been conflicting BALCA panel decisions about listing special job aspects. In Matter of Credit Suisse Securities (USA), LLC3, the BALCA panel decision determined that the regulations regarding what is to be listed in newspaper ads applies to all recruitment. Following that panel decision and other similar decisions though, in an en banc decision of July 30, 2014, Matter of Symantec Corporation4 BALCA disagreed with the Credit Suisse panel and determined that not everything required for newspaper ads must be included in the additional three advertisements for professional positions. However, the decision points out that if the CO is not satisfied with the advertising content and believes that U.S. workers may not have been fully apprised, then "the CO may exercise his broad discretion to order supervised recruitment ...."

Most employers wish to avoid the procedural hurdles and additional time and expense of supervised recruitment in which the DOL can require an unlimited amount of additional recruitment. In the supervised recruitment process, the DOL also requires follow-up for most applicants under tight deadlines. Therefore, to fully comply with the regulations for fully apprising U.S. workers of the job and to avoid having the CO require supervised recruitment, the best course is to consistently describe everywhere all requirements, including travel and other special job aspects. These should be included on the Application for Prevailing Wage Determination, all recruitment materials, and on the Application for Permanent Employment Certification (ETA Form 9089).

With that in mind, though, how should these types of job requirements be described? First, it is important for the employer to keep in mind the wording of the PERM Regulations found at 20 C.F.R. §656.17, especially §656.17(ii)(D)(f)(3) and (4) that state the following:

[Advertisements placed in newspapers of general circulation or in professional journals must] ...(3) Provide a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought; (4) indicate 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."

This section of the PERM Regulations seems simple at first reading, but has caused much confusion regarding how to describe positions. Therefore, it is essential at the beginning of the PERM process to determine not only how to word the duties and academic and experience requirements, but also to determine the actual worksite(s) and whether or not the position requires or permits telecommuting. If telecommuting is required or is an option, then must the telecommuting occur from a certain location or region, or can the employee telecommute from anywhere in the U.S.?

Whether or not telecommuting is an option or requirement, will there be multiple worksites? Are those worksites known or will they change according to business needs and future contracts? Will the employee work embedded at anticipated or unanticipated job sites, or must the employee work at the employer's site? Is relocation a necessary element of the job? Answers to these questions not only impact the wording on forms and in recruitment, but also may impact where recruitment is performed and where the Notice of Filing must be posted.

Furthermore, is travel a requirement? The DOL tends to view travel as separate from telecommuting, roving employment, and relocating (though arguably you can't relocate without traveling). However, the DOL has not fully explained how travel is to be described and listed, again leaving it up to BALCA panel decisions that are sometimes contradictory to determine how to list travel.

In determining if travel is a job requirement, an employer should consider the following scenario:

An ideal candidate applies for the PERM position. Everyone at the company who interviews the candidate agrees that the person is qualified. When exploring the potential job offer with the candidate, though, the candidate states that any and all travel is impossible.

Would the employer still hire that individual for the position? If so, then travel is likely not a requirement and it is not necessary to list it because only requirements, and not preferences, should be included in the PERM job description. If hiring that person would not be possible because s/he can't travel, then the reasons why hiring is not possible should be explored. What is the nature of the travel that would prevent hiring that person into the position? What percentage of time must the individual travel and where will the travel take place?

If travel is required, then the nature and amount of travel should be fully described. Is travel only local? Is travel regional or national in scope? Will the position require international travel? What about the job duties require travel? Describing travel accurately is necessary because when testing the labor market, U.S. workers must be fully apprised of the job opportunity. Additionally, accurately describing travel and other job aspects can affect the prevailing wage determination issued by the DOL. Minimal insignificant local travel will likely not increase the wage level, but more extensive travel, when the Occupational Outlook Handbook (OOH) published by the DOL's Bureau of Labor Statistics does not include travel as normal for the occupation, will likely result in an increased prevailing wage. International travel almost always increases the wage level because few occupations in the OOH list international travel as normal to the occupation.

The American Immigration Lawyers Association (AILA) published DOL Practice Alert: PERM Travel Bug Advisory in April 2014 in attempt to advise practitioners how best to list travel.5 In addition to saying that "if the position requires travel, list it everywhere," the Practice Alert divides travel into incidental, little, limited and extensive. If travel is truly incidental, then it might not be necessary to list it in the PERM process. However, any travel that impacts the job duties should be listed. For example, if there is a slight possibility that the person would need to attend a professional conference or perhaps visit a client site on a rare occasion, then it is most likely not necessary to list the travel on the prevailing wage determination application, in recruitment, and on the ETA Form 9089, However, if travel is more extensive and expected, then it should be more fully described in all of these areas. Often travel is described in percentages of work time. Following is an example of how travel can be listed using percentages:

Requires 20% travel to visit clients in the Northeastern U.S. and to attend national conferences. Requires 10% international travel for training at the company headquarters in Brazil.

The travel requirement must be described in Section E.a.6 and 6a. of ETA Form 9141, Application for Prevailing Wage Determination. That same travel requirement should be listed on the Notice of Filing, the job order posted with the State Workforce Agency, and in the print advertisements. The December 17, 2015 BALCA panel decision, Matter of IT Works International, Inc.6 upheld that travel is required to be listed in the print ads. Travel requirements listed on the Application for Prevailing Wage Determination should not only be listed on the Notice of Filing and print ads, but in all the recruitment methods. Further, DOL denies PERM applications where the travel is not included on ETA Form 9089. Note, however, that the ETA Form 9089 does not have a designated section for travel, even though the Application for Prevailing Wage Determination does. Therefore, on ETA Form 9089, travel should be included either with the job duties or with the requirements (most often in Section H.14). The DOL has denied applications where travel was listed on the Application for Prevailing Wage Determination and in recruitment, but not on ETA Form 9089, on the basis that if travel is listed elsewhere but not on ETA Form 9089, the position on ETA Form 9089 is not the same position as that for which a prevailing wage was obtained and that was advertised in the labor market test. Further, even though ETA Form 9089 has no designated section for listing travel, the DOL will deny the PERM application if the travel is not listed on the form though that may be inconsistent with other BALCA decisions.7

It is important that employers and attorneys work together at the start of the PERM process to make distinctions between travel, relocation, multiple worksites, roving or embedded employment, etc. Unusual work schedules should be considered (i.e., the occupation requires the person to be on call or work weekends and holidays when normal hours are Monday through Friday from 9:00 a.m. to 5:00 p.m.). To ensure successful navigation of BALCA's sometimes inconsistent decisions, these requirements should be fully determined and listed consistently

1 Matter of IT Works International, Inc., 2012-PER-00659 (BALCA Dec. 17, 2015).
2 Directive: Field Memorandum No. 48-94, from Barbara Ann Farmer, Administrator for Regional Management, posted May 23, 1994; Subject: Policy Guidance on Alien Labor Certification Issues. See Section 10. Labor Certification Applications Where Aliens Will be Working at Various Unanticipated Sites.
3 Matter of Credit Suisse Securities (USA), LLC ("Credit Suisse"), 2010-PER-00103 (BALCA Oct. 19, 2010).
4 Matter of Symantec Corporation, 2011-PER-01856 (BALCA July 30, 2014) (en banc).
5 American Immigration Lawyers Association (AILA) InfoNet Doc. No. 14040745 (Posted 4/7/14).
6 Matter of IT Works International, Inc., 2012-PER-00659, (BALCA Dec. 17, 2015).
7 In Matter of Federal Insurance Co., 2008-PER-0037 (BALCA Feb. 20, 2009) BALCA determined that the "Kellogg language" from the pre-PERM Francis Kellogg, 1994-INA-465 (BALCA Feb. 2, 1998) (en banc) does not have to appear on the ETA Form 9089 because the form's instructions and the form itself failed to provide a logical place to write the required language. Though there is nothing in the instructions or a space designated on the ETA Form 9089 for travel and other similar job aspects, to date this same logic has not been applied so travel must be included on the ETA Form 9089.