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Ask Mr. Shusterman: How to Process a PERM Application for a Roving Employee

Most likely, if you are an employer or a foreign-born employee, you have heard of the PERM application process.

Prior to petitioning for a green card for a worker based on employment, the sponsoring employer must first test the job market to demonstrate that it could not identify a qualified U.S. worker (U.S. citizen, permanent resident, refugee or asylee) willing to accept the position and that the employment of the foreign national will have no adverse effects on the wages and working conditions of similarly-employed U.S. workers.

Before submitting a PERM application, an employer must run two Sunday advertisements in a newspaper of general circulation in the area of intended employment and place a job order with the appropriate State Workforce Agency for 30 days. Generally, if the job requires experience or an advanced degree, a professional journal is used to advertise the job opportunity.

For professional occupations, the employer must take 3 additional recruitment steps from among the following alternatives: (1) job fairs; (2) employer’s website; (3) job search website other than the employer’s; (4) on-campus recruiting; (5) trade or professional organizations; (6) private employment firms; (7) employee referral program with incentives; (8) campus placement offices; (9) local and ethnic newspapers; or (10) radio and television advertising.

Employers must also post a notice of the job opportunity at the location of employment for ten consecutive business days or, if the job is covered by a collective bargaining agreement, provide a notice to the union representative at the location of intended employment.

The notice must also be published in any and all in-house media in accordance with the normal procedures used for the recruitment of other similar positions.

This process can become complicated when it involves an employee who may be assigned to work at several different worksite locations. These are sometimes referred to as “roving employees".

The proper procedure to apply for PERM for a roving employee is less than crystal clear. Since job markets vary from region to region, how can an employer sufficiently test the job market for employees who will work at several different locations? The U.S. Department of Labor (DOL) has indicated in published FAQs that for “Schedule A" employees (registered nurses and physical therapists), when it comes to labor condition applications (LCAs), if an employer does not know at which client site the employee will be working, it must post a notice at each client site. The DOL has also indicated that for Schedule A applications in which the employee works for a staffing agency and may be assigned to various locations, the prevailing wage determination (PWD) can be issued for the area of the staffing agency’s headquarters.

Therefore, some immigration lawyers believe that an employer can file a PERM application for a roving employee after obtaining a PWD and conducting a recruitment campaign only for the area of the company’s headquarters, provided that a notice is posted at each possible worksite.

We believe that this approach subjects the employer to unnecessary risks. Let’s say that the employer is a company located in a rural area. It employs a roving IT consultant in a major metropolitan area. It is likely that the prevailing wage would be higher and the number of U.S. workers seeking employment in that occupation might be much greater than in the metropolitan area than where the company’s headquarters are located. Has the employer in this hypothetical really tested the job market?

There has been at least one decision (Amsol, Inc., 2008-INA-00112) by the Board of Alien Labor Certification Appeals (BALCA) that confirms that in some situations, a PERM application should be approved when the employer obtains a PWD and tests the job market in the area where the company’s headquarters are located even if the roving employee will be working at unknown client sites elsewhere. However, the prevailing wage for the area where the company was headquartered in Amsol was higher than the prevailing wage in the area where the employee was actually working. Also, the employer in Amsol had advertised the job in a national magazine.

Another option would be to conduct recruitment at all known client locations. However, this is unrealistic given that the employee might have numerous clients across the country, and that the costs of conducting simultaneous recruitment campaigns for each possible worksite location would be prohibitive.

Our approach is to obtain a PWD and test the job market for the headquarters and also at the location where the foreign employee is currently working. For example, if the headquarter of the employer is Tulsa, Oklahoma, and if the employee is currently working at Sunnyvale, California, we advise the employer to conduct recruitment which includes print ads, a 30-day job posting with the SWA, etc. at both locations. We have been successful in obtaining the PERM approvals using this strategy.

When filing a PERM application for a roving employee, analysis is required on a case-by-case basis to determine the best strategy regarding how to conduct a proper test of the job market and determine the prevailing wage.

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