A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Monday, August 12, 2013

Labor application ads must include home office option

Modern jobs often allow employees to work from home or telecommute for various reasons.  Sometimes it is to accommodate an employee’s family needs. Other times, it is to ensure that employees stay close to customers for better services and response time.  For example, a sales professional may work from home and travel to various client sites within a region.  Technological gadgets such as smartphones and computers make telecommuting and offsite employment possible.  However, in the context of labor application, employers must include any telecommuting or home office option in the advertisements, according to a recent BALCA decision, Matter of Siemens Water Technologies Corp., 2011-PER-00955 (07/23/2013). 

A PERM foreign labor certification is required in most situations before an employer may employ a foreign worker permanently in the United States.  As part of the labor certification process, an employer must place advertisements in various media to apprise U.S. workers of the job opportunity.  Exactly what needs to be included in the ads has not been clearly defined in the labor certification regulation.  One of the requirements is that ads must not “contain wages or terms and conditions of employment that are less favorable than those offered to the alien.” 20 CFR § 656.17(f)(7). 

In Matter of Siemens, the employer filed a labor application on behalf of a foreign national for the position of a Field Service Engineer(FSE).  The employer’s company headquarter is located in Houston, TX. However, the FSE lives in Woodlands, TX, and is allowed to work from home.  Further, he must also travel to various client sites both in the U.S. as well as in other countries.  During the labor application process, the employer therefore recruited for the position in Woodlands, including placing ads in various media.  The ads listed Houston as the work location but did not include the home office arrangement as an option.  Consequently the CO denied the application.

The employer appealed to BALCA and argued that the regulation does not require the disclosure that the work location is a home office.  Further, the employer argued that the ads did not contain any terms or conditions that are less favorable than those offered to the foreign worker.  Finally, the employer also relied on the minutes of one of the DOL Stakeholder Liaison Meetings, which specifically allowed recruiting in the area of actual employment.

However, BALCA upheld the denial of labor application, explaining that the minutes cited by the employer only supports recruiting in the area of actual employment, i.e., Woodlands, TX, but do not provide guidance regarding what geographic location should be included in the ads.  According to BALCA, listing of the job location as Houston, TX, in the ads is actually a condition less favorable than those offered to the foreign worker.  The reason is that a potential job seeker could think that he or she is restricted to working in Houston.  Since the home office option is omitted in the ads, the ads failed to inform potential job seekers that they could also work from home and other areas.   

Under Siemens, employers must include any home office option in labor application ads. In fact, since the omission of employment conditions has been interpreted on multiple occasions by BALCA as being “unfavorable” or “restrictive” to the U.S. workers, it is wise to include all employment conditions - especially those relating to travel and work location - in the ads.  These conditions may include home office, telecommuting, travel or relocation to client clients, etc.

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