By Heather Oh and Christopher Barnett ,
As employers continue to reassess workplace policies amid the COVID-19 pandemic, several major U.S. companies have recently announced that they will extend work-from-home policies into the fall or to end of the year. Some have gone further, by announcing they will allow employees to work from home permanently as they review office policies. Given the slow, stop-and-start reopening, businesses are unlikely to be at full capacity any time soon. Most companies are now addressing the reality that their employees will be working from home for longer than anticipated.
Companies remain obligated to comply with immigration and labor regulations during the national emergency. While an occasional day working at home is unlikely to invite scrutiny, a number of regulations limit long-term work-from-home arrangements for foreign employees. In the meantime, neither the Department of Homeland Security nor the Labor Department (DOL) has provided updated guidance that contemplates lengthy or permanent telecommuting by foreign employees—in fact, the DOL and practitioners alike still rely on a decades-old field memorandum released in 1994 for guidance on PERM travel and recruitment issues.
Employers that sponsor foreign employees in the green card process have specific and highly technical requirements to follow. This article looks at some of the key compliance issues in the PERM labor certification process for extended work-from-home circumstances.
Location matters
Foreign national employees and their managers may be unaware that their U.S. work location can affect their immigration case, and may not think to inform HR or immigration counsel before working remotely from “home” – in another city, state or even from overseas. The PERM application is location-specific and a change in work location could require starting the process again. The location of the sponsored role affects the employer’s labor market testing obligations to ensure that qualified U.S. workers are not available for the PERM position.
Heather Oh is a Senior Associate in the New York office of Berry Appleman & Leiden LLP. An employee working from home at a location outside commutable distance to the job site would trigger recruitment within the new geographic area. Though certain provisions allow “roving” employees to work at client sites while their PERM application is pending, the application must reflect the peripatetic nature of the position and, unlike roving employees, telecommuting employees typically work from one worksite indefinitely.
Permanent work-from-home arrangements may allow the employer to choose the recruitment area, but would also require that all workers be offered the arrangement. For example, if an employee switches from in-office to permanently working from home but now reports to the same office solely for payroll purposes, the employer can choose to recruit out of the office location and advertise that telecommuting benefits are available, or recruit out of the employee’s home location. Choosing either recruitment strategy depends on a number of factors such as location, salary, and nature of the work, and the employer may need to strategize each case individually with immigration counsel. In either case, the recruitment would also likely need to reflect that telecommuting benefits are available, and that the work can be performed from anywhere in the U.S. The sudden shift to a permanent work-from-home situation would affect the PERM labor certification process as it is considered a benefit that needs to be offered to U.S. workers through the recruitment process.
Posting and ‘open for business’
Social distancing and remote working has greatly complicated the logistics for employers to fulfill posting obligations, yet the DOL has not eased rigid requirements of physically posting a Notice of Filing to inform employees of a PERM application— the agency confirmed on May 20 that this requirement would remain the same. Employers cannot fulfill the requirement through electronic posting on the internet or company intranet and must post the physical notice for 10 consecutive business days during which the company is “open for business.” Can an employer demonstrate it is open for business when all its employees are working from home?
Employers have struggled to fulfill the posting requirement in the absence of further guidance on what the government considers a satisfactory threshold for an office to be deemed “open for business.” Existing guidance allows employers to prove that they are open for business on weekends or holidays if they meet certain criteria showing that the workplace is open to customers, employees are engaged in normal business activity and the posting area is accessible to employees. However, the DOL has never clarified the details of that guidance, such as how many employees and customers would be needed to satisfy the notice obligation during non-business days.
Further, the agency has not provided guidance on what “open for business” means during the current pandemic. Would it consider the Notice of Filing posting requirement fulfilled if only a small number of employees are at the worksite to see the posting? What percentage of employees working onsite would satisfy the requirement? Do employees need to be working onsite or merely have the ability to enter the site at will? Without guidance on these issues, employers are left guessing when a Notice of Filing posting is sufficient. This underscores the need for employers to strategize with their immigration counsel as they phase employees back into the office to ensure they are meeting the technical requirements of the PERM process.
Delays and downstream consequences
Even with an office-reopening plan, many employees may not want to work in the office out of concern for their safety. Other employees may now prefer their work from home arrangements that were initially forced upon them. Employers have the unenviable task of balancing the needs of their entire workforce against the unbending rules of U.S. immigration. Amid the uncertainty, one thing is clear: Each day an office remains closed delays the ability of employees to complete the PERM process and move to the next stage of their quest for a green card.
Office closures and delayed PERM recruitment can have other downstream consequences for an employer’s workforce. Employees on a time-limited status such as H-1B and L-1 must start the PERM process early enough to ensure they can stay in the U.S. with work authorization until they receive their green card. Employers and their immigration counsel often strategize timelines to accomplish this, but these unprecedented recruitment delays may force some employees to leave the U.S. before they can move to the next step of the green card process.
Consider the impact of layoffs
Employers that are conducting furloughs, layoffs and other employment reductions need to consider the impact these decisions have on their green card program. The PERM application asks whether the employer has laid off a U.S. worker (U.S. citizen or lawful permanent resident) in a related job in the intended area of employment within the previous six months. An employer who answers yes would be required to track down the laid-off worker, determine if they are qualified and notify them of the job opening. If an employer files a PERM application more than six months after a layoff, they would not need to disclose the layoff, and employers should be wary in the current environment that the DOL may issue more audits for PERMs filed during the current pandemic because of the increasing unemployment rate.
Expect more audits
Employers should anticipate greater scrutiny of their PERM applications and an increased number of audits. Now that the DOL has ended COVID measures that eased deadlines, employers must respond to requests for information by the deadline stated on the notice (typically 30 days for the audit).
Christopher Barnett is a Senior Associate in the Dallas office of Berry Appleman & Leiden LLP. It is critical that employers document their compliance with PERM processes and retain documentation in case of an audit. Employers should be prepared to prove they took steps to recruit for the job in accordance with DOL regulations as well as the reasons for disqualifying any U.S. workers who applied for the role.
Telecommuting by foreign national employees may draw additional scrutiny from authorities. An application showing the foreign employee’s work location identical to his or her residential address could be flagged for audit. Moreover, the DOL has already begun to issue audits requiring that employers explain the business necessity of job requirements for jobs that are conducted remotely—an indication that the agency is focusing on employers who improperly reject U.S. job seekers. In addition to asking normal questions about how the employer disqualified U.S. applicants, the agency is now asking employers to justify why a particular degree is required for the role, or why a lesser degree is not acceptable in situations where the employer requires a master’s degree or higher. Audits may also require employers to demonstrate that the minimum requirements set in the PERM match the qualifications of other employees in the same position, and may even ask employers to provide evidence of past hiring practices. Though it remains to be seen whether these requests fall outside the scope of the DOL’s authority to audit a PERM, employers and their immigration counsel should strategize a response for such requests.
Conclusion
The realities of the workplace are changing. It will be many months before businesses resume normal operations, if ever, and for large segments of the workforce, teleworking is here to stay in the post-COVID era.
While the rest of the world adapts to these new changes, U.S. immigration regulations remain largely unchanged, and may stay that way for the foreseeable future. Successful immigration programs will balance the overwhelming desire for telecommuting with the rigid requirements of an antiquated PERM recruitment system.
Companies should work closely with immigration counsel to plan for these new challenges and explore strategies that maximize their flexibility.
