June 03, 2016
Minsky, McCormick & Hallagan
Relocation and roving employees are common in many industries. What has not been commonly addressed is how to address relocation of employees on the Form 9089, PERM application. On May 12, 2016, the Board of Alien Labor Certification Appeals (“BALCA” or “the Board”) decided a case involving an employee’s possible relocation in a PERM application, anticipated or not.
In Matter of Infosys Ltd, 2016-PER-0074 (BALCA May 12, 2016), an employer had listed the employee’s primary worksite on the PERM application, noting that the position included “various unanticipated locations throughout the U.S,” The Certifying Officer (“CO”) for the PERM application, however, denied certification because of the employer’s failure to provide sufficient information regarding whether the position required travel and/or relocation.
The language “various locations throughout the U.S.” originates from ETA Field Memorandum No 48-94 or the “Farmer Memo,” which explained that when addressing roving employees, the employer should file the 9089 according to the area in which the employer’s main or headquarters office is located. In addition, the Farmer Memo provided guidance on where an employer who chooses to use the “unanticipated locations” language should place the information on the Form 9089 (Item 7 of Part A) and that a short explanation of why it is not possible to predict the work sites should also be included The memo, however, did not distinguish between relocation versus travel.
Per the PERM regulations, 20 C.F.R. § 656.27(f)(4) the employer must:
- Indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements.
In its decision in In Matter of Infosys Ltd., BALCA answered two primary questions:
- How must an employer address possible relocation on a PERM application?
- Is an employer affirmatively obligated to announce its relocation requirement in both the Form 9089 and the advertising?
1. How must an employer address possible relocation on a PERM application?
BALCA determined that:
A description of the primary worksite in addition to the language “various unanticipated locations throughout the U.S.” was sufficient to provide information regarding whether a position requires travel and/or relocation; and that the language “various unanticipated locations throughout the U.S.” is more closely associated with relocation than it is with travel.
2. Is an employer affirmatively obligated to announce its relocation requirement in both the Form 9089 and the advertising?
BALCA determined that there was no obligation on the part of the employer and that it is a violation of due process to deny a PERM application because the employer does not disclose possible relocation.
The Board emphasized that it is important to keep language consistent between advertisements and the Form 9089 when addressing travel and relocation, but in regards to possible relocation needing to be disclosed, BALCA favors fairness. In Matter of Infosys Ltd. BALCA noted that the immigration bar has been asking the DOL to provide some guidance on addressing possible relocation, but until guidance is provided, BALCA believes it is a violation of due process if a PERM application is denied for failure to list possible relocation.
For more information about the PERM process, labor certification, or obtaining a green card, please contact an attorney at Minsky, McCormick & Hallagan, P.C.