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.)

Thursday, June 23, 2016

Relocation Requirement Not A Basis For Labor Cert Denial

Since the dot.com era, the IT consulting business has firmly found its place in the corporate world. Rather than hiring permanent employees, companies prefer to hire "contractors" or "consultants" to perform certain IT functions for both cost control and efficiency.  The nature of the IT consulting business often requires the consultants to work at different locations for various periods of time. Such requirement introduced another level of complication in the permanent foreign labor application filed on behalf of these IT consultants. A certified labor application is normally required before an employer may petition for a foreign worker to work permanently in the United States.

Recently, such a labor application was denied by the Certifying Officer at DOL because the employer failed to list the relocation requirement in the recruiting documents and also on the PERM labor application (ETA Form 9089) for a position with a primary work site "and various unanticipated locations throughout the U.S."

The Appeals Board (BALCA) reversed the denial and granted certification on appeal.  In this case (Matter of Infosys, 2016-PER-00074), the employer included a requirement for travel in the labor application, and argued that there is no major distinction between travel and relocation.  The employer relied on a 1994 memo of DOL known as the "Farmer Memo" because it was issued by Barbara Ann Farmer, Administrator for Regional Management at the time.

The Appeals Board agreed with the employer that it was sufficient to mention about travel in the application because relocation can be inferred from the travel requirement and also the job description.  By virtue of the fact that the job requires the employee to work at various unanticipated locations throughout the U.S.,  potential job applicants should expect that relocation to other parts of the country is required in order to perform the job duties.  The Certifying Officer also relied on some previous cases involving the same issue which were denied by the Board. These cases, however, are distinguishable from the instant case, according to the Board.  These cases, for example, Patel Consultants Corp., 2011-PER-535 (Feb. 27, 2012), were denied because of direct inconsistencies between the language in the advertising and the PERM labor application.

The Board also granted certification based on the principles of fundamental fairness.  The Farmer memo allowed employers to file the labor application at the local office where the employer's headquarter office is located in situations where the employee is required to work at various locations in the U.S.  The Farmer does not distinguish between travel and relocation.  There has been no other guidance from the Labor Department despite repeated requests from the organized immigration bar on this particular issue.

Further, the petitioner in the case (and also many other employers) has used the same approach and language in many other labor applications which have been approved by DOL.  The Board found the sudden change in the adjudication standard without prior notice to the employers and the public fundamentally unfair.

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