Foreign Employees: Are You Temporary Or Permanent?

Employment of foreign workers in the U.S. is a tricky business.  The rules and regulations are complex and can sometimes be confusing.   One example are the differences between temporary and permanent employment, as illustrated by a recent decision by the labor certification appeals board in Matter of Bally Gaming Inc., decided on  9/2/2016. 

In Bally, the employer submitted an Application for Permanent Employment Certification to sponsor a foreign worker employee for permanent employment as a Software Engineer in Egg Harbor Township, New Jersey, with no travel requirements.

After noticing that the employee was residing in Kennesaw, Georgia, at the time of filing, the Certifying Officer (CO) issued an audit notification to the employer, requesting for documents regarding the location of the permanent employment.

The employer responded by explaining that the employee was indeed working in Georgia based on his temporary H-1B employment status.   Due to business reasons, the employee had to work in both Kennesaw, Georgia, and Egg Harbor, New Jersey, for the time being.  The CO, nonetheless, denied the labor application. The CO concluded that the work locations did not match the information contained on the prevailing wage determination (PWD) submitted by the employer.  The PWD wage was based on employment as a Software Engineer in the Egg Harbor Township, NJ, while the foreign worker would also be performing work in Kennesaw, Georgia.

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The employer requested for reconsideration of the denial, which was rejected by the CO.  In affirming his denial, the CO also invoked 20 C.F.R. § 656.17(f)(7), a PERM regulation, as another basis for denial.  This regulation provides that an employer’s advertisements of a job opportunity must “not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.”   By allowing the employee to live in George and travel to work New Jersey, this can be considered a favorable condition or benefit that should have been announced in the advertisements, according to the CO.  Since the advertisements only contained the work location in New Jersey, the CO refused to certify the labor application.  

On appeal, BALCA (the labor certification appeals board), reversed the denial.  The Board noted that the permanent and H-1B temporary employment programs are entirely separate, and an employee can be working on one set of conditions under the H-1B visa program while a labor application for his permanent employment can be filed under a different set of conditions.

Here, the employer was following the terms and regulations under the H-1B program by employing the employee to work in two locations.  In fact, the employer produced the PWD for the H-1B employment, which contained both work locations.   For permanent employment in the future, the employer intended to employ the employee only at the Egg Harbor, New Jersey location.  The related advertisements and the ETA 9089 form are consistent in this respect.  Consequently, the Board reversed the CO decision and granted certification.

The Board did not dwell on the second basis for denial because that issue was moot.  However, the Board did suggest that the second reason was also not valid to the extent that the employer did not have an opportunity to put forth a response, because it was added by the CO only after the employer submitted a request for reconsideration.

Although this case does not create any new law, it does clarify an important concept..  The majority of permanent labor applications are submitted for foreign workers who are already working in the U.S. under a temporary work visa such as H-1B.  Knowing the differences of the terms and requirements between temporary and permanent employment is critical.