BALCA Decides PERM Labor Certification Case Involving Working at Home

file000103102419.jpgAdvertisements published for the purpose of recruiting for PERM labor certification are required to disclose the geographic location of the employment. Yet, advertisements are not required to list the actual street address of the worksite. Suppose that the foreign worker is working from his or her home as the worksite address. May the employer simply advertise the city and state of the worksite, or must the employer disclose that the position involves working from home? After all, regulations state that the requirement to disclose the amount of travel required for the job is satisfied when the advertisement simply lists the city and state of job location.

This issue was resolved in a recent case decided by the Board of Alien Labor Certification Appeals (BALCA) in the matter of Siemens Water Technologies Corp. 2011-PER-00955, decided July 23, 2013.

The petitioning employer, Siemens Water Technologies, filed a PERM application with the US Department of Labor (DOL) to obtain a labor certification for the beneficiary worker as a field service engineer. The employer received an audit notification letter requesting certain information. The employer responded to the letter, and the case was subsequently denied. The employer filed a request for reconsideration, which was denied, and the case went to BALCA for appellate review.

The Certifying Officer (CO) issued an audit notification letter had requested the employer to provide information as to why the worksite address and the workers home address are listed at the same address on the PERM application. The employer replied that the reason for this was because the worker was working from home. The CO subsequently denied the perm application on this basis.

The CO stated that it denied the PERM application because the employer failed to disclose in its recruitment advertising that the job position involves working from home, yet the beneficiary worker who is the subject of the PERM was working from home, as evidenced by the attestations on the PERM application and the employer’s audit response. The CO stated that since the employer’s advertisement did not inform US workers that they could work from home instead of the employer’s headquarters or offices, the advertisement artificially excluded US workers from applying for the job who potentially could qualify.

The employer argued that regulations do not require PERM advertisements to disclose that the geographic location of the worksite is a home office. Also the employer argued that it complied with regulations because the advertisement did not have terms and conditions of employment that were less favorable to those offered to the worker. The employer cited the minutes from the DOL’s Stakeholders Liaison Meeting of March 15, 2007, which stated that when the foreign national’s home address is the same as the worksite address, this will be picked up by the PERM, and should not be a problem if the case is otherwise approvable.

BALCA held in this case that the employer incorrectly relied upon the DOL’s meeting minutes because the minutes were silent as to what geographic location is required to be in recruitment advertisements when worksite would be at the applicant’s home. BALCA said that since the advertisement listed the geographic location simply as “Houston, TX” without mention of the worksite being a home address, an applicant would be misled into believing the job location is limited to Houston, but the location could also be the applicant’s home address, which would not necessarily have to be Houston. BALCA concluded that this greatly expanded the potential geographic location of the worksite.

Consequently, the employer’s advertisement was found to be unduly restrictive, misleading, and could’ve prevented potential US applicants from applying for the job, and it affirmed the CO’s denial of certification.

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