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BALCA Decides Whether PERM Advertising Must Disclose Working at Home

PERM regulations impose a duty upon employers to disclose the jobsite location and amount of travel required on its recruiting advertisements, and the regulation is satisfied when the advertising simply provides the city and state where the job is located. One interesting question is whether PERM recruiting advertisements are required to disclose that the foreign national worker is working from his or her home address, even when the home address is located within the geographic location of employment? Interesting case law answers this question. If you have questions about the PERM process and would like to consult with an attorney, contact The Law Firm of Shihab & Associates. We have over 50 years of combined legal experience in a wide variety of complex and immigration law matters.

The answer to this question is found in a case decided by the Board of Alien Labor Certification Appeals (BALCA) In the Matter of Siemens Water Technologies Corp., decided July 23, 2013. In this case, the employer filed a PERM application with the US Department of Labor (DOL) for its employee working as a field service engineer. The DOL’s Certifying Officer (CO) sent an audit notification letter to the employer requesting additional information. Specifically, the CO asked the employer why the jobsite location address and the employee’s home address were listed on the PERM application as the same address. The employer responded that this was because the employee was working from his home address. Subsequently, the CO denied the application.

The CO stated that the reason the PERM application was denied was because the recruiting advertisements did not disclose that the job position would allow an employee to work from his or her home, while it was clear the employee was allowed to work from his home according to the attestations on the perm application and in the employer’s response to the audit. The CO’s position was that the advertisement artificially excluded potential US job applicants from applying for this job because the advertising did not disclose that they could work from their home rather than headquarters or offices of the employer.

The employer took the case to BALCA to appeal the CO’s denial of the application. The employer argued that the CO should not have denied the application because the PERM regulations do not require advertisements to disclose the geographic location of a worksite with more specific information other than just the city and state. In support of its argument, the employer cited the minutes from the DOL’s Stakeholders Liaison Meeting of March 15, 2007, which say that when the jobsite address is the same as the foreign national employee’s home address, this fact will be picked up by the PERM application and should not be a problem if the case can otherwise be approved.

The Board disagreed with the employer, holding that the employer erroneously relied on the DOL’s meeting minutes. The subject of those minutes was whether a jobsite address can be the same as the employee’s home address on the PERM application Form 9089, and whether this fact will cause a problem with the DOL. The minutes did not say that the employer’s recruiting advertising can omit the fact that the jobsite is the employee’s home address. The Board held that because the advertising disclosed the geographic location of the jobsite as simply “Houston, TX” without disclosing that the site can include the potential employee’s home address, potential job applicants would be misled into thinking that the worksite is limited to Houston, when the worksite could also include the applicant’s home address, which may not necessarily be in Houston.

The board said the potential geographic location of the jobsite was greatly expanded by this fact, and the advertising was unduly restrictive and misleading, and therefore could have prevented potential US workers from applying. The court upheld the CO’s denial of the PERM application. If you would like further information about the PERM process or any other immigration matter, please contact our immigration attorneys at The Law Firm of Shihab & Associates, Co., LPA to schedule a consultation with an attorney at an office near you.

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