Telecommuting positions, where an employee works from home or a satellite location distinct from an employer’s main office, are more and more common in today’s work environment. However, the DOL has responded to telecommuter PERM questions with minimal elaboration. Familiarity with PERM guidelines is important for filing a successful labor certification petition. However, there are cases in which familiarity is next to impossible without prior practical experience with similar petitions.

Despite repeated requests from the American Immigration Lawyers Association (AILA) for specific information on how to file an acceptable PERM for a telecommuter, the DOL has not addressed the issue in full. The DOL’s publically accessible documents and guidelines make only brief mention of the telecommuting issue. For many petitioners the lack of clear DOL guidelines may make filing a PERM application on their own too risky.

DOL’s Continued Delay of Publishing Telecommuter Guidelines

When asked in 2010 about the specifics of PERM applications for telecommuters, the DOL stated that a FAQ would be issued to address the complex issue. Two years have passed since then and petitioners still have no new official guidance on this issue.

The DOL has continued to delay publishing appropriate guidelines for telecommuter PERM applications. Thus, there will continue to be petitioner doubt about how to file a correct PERM for all beneficiaries working outside of an employer’s main office.

Telecommuting Positions with a Fixed Location

Certain telecommuters may be eligible to work from home, but only within a certain geographic area. For example, a company may be headquartered in New York City but conduct most of its business in Miami, FL. The company may allow telecommuting from Miami but not allow telecommuting from anywhere outside of that area. For these types of limited telecommuting position the DOL has offered some guidance.

In March of 2007 the DOL stated that, for telecommuter positions that must be located in a certain area, the location of where work is being done should be used for Prevailing Wage Determinations (PWD) and recruitment procedures. This would mean that, in some telecommuter cases, the employer would conduct recruitment based on the employee’s remote home office and not the employer’s main office. AILA has noted that, even if these guidelines are followed, listing the employee’s residential address and worksite address as the same location will likely result in an audit. Such an audit may not be a problem if all other aspects of the application are approvable but the chances of an audit are still high.

In addition, the DOL’s 2007 telecommuter statements do not match previous case law for other positions in which an employee does not work from the employer’s main office. For roving positions, such as IT consultants, the rulings have been quite different. The Board of Alien Labor Certification Appeals (BALCA) has stated that just because an employer has employees in a location different than its main office does NOT mean that the location is an appropriate site for recruiting purposes. Since the DOL has not explained the particular standards for telecommuter positions at length, it has also not addressed how previous case law would be interpreted for telecommuter petitions.

Telecommuting Positions with No Fixed Location

The DOL has remained silent on the guidelines for other types of telecommuting positions. So far, the only guidance given has been for PERM applications in which an alien will work from home in a particular city or state. For other telecommuting positions, where applicants could work from their home no matter where it is, there is no specific DOL guidance.

For example: Company A is headquartered in Los Angeles and is filing a PERM for a beneficiary that will work from home in another state. Any US applicants will also be able to work from home for this position. Based on established guidelines, Company A does not know the proper recruiting procedures. Company A’s main location is Los Angeles, but telecommuters do not have to work in that location. Qualified applicants could work from home all over the United States and not just in Los Angeles. So, Company A is unsure where PWD and advertising should be conducted. If the position is only recruited for based on Company A’s main office, then qualified telecommuters from other states will not have the same opportunity for the position as the beneficiary. But if recruiting is done based on the beneficiary’s worksite the DOL may not consider the position open to all qualified US applicants. Company A cannot rely on official DOL guidelines for this scenario because they do not yet exist.

Without DOL guidelines, petitioners have been left with only their intuition in regard to filing a PERM for telecommuters who may work from any home office. In situations where a telecommuter has no fixed location of work, only a combined knowledge of related case law and regulations for similar working situations can guide a petitioner. Attorneys experienced in filing PERM applications for telecommuters have additional practical insight that is only attainable by firsthand knowledge of which petitions have been approved in the past.

Conclusion

The PERM application process is too time consuming and too precise to leave anything to uncertainty. While the DOL has not made detailed requirements for all telecommuter PERM applications available to the public, competent attorneys with telecommuting expertise will know based on prior cases what are acceptable filing procedures. Where DOL regulations, case laws, or guidelines are lacking, personal experience with how to properly recruit and advertise for telecommuters is needed.

For any potential beneficiary who plans to telecommute for a permanent position, or any employer planning to file a PERM in support of such a beneficiary, it is recommended that they contact an immigration attorney with extensive knowledge of PERM applications. Up to now no alternative to practical experience has been offered by the DOL to ensure that telecommuter PERM applications are executed properly.

For more information on PERM Labor Certification, please visit our library on PERM Labor Certification and our recent PERM articles.