Overview of PERM Headquarters Rule23 Feb 2023
In applying for a PERM labor certification, the worksite generally must be listed. While this location was traditionally the employer’s address, the increased use of virtual offices and remote work has complicated the analysis for determining the correct location to note while filing the PERM. If an improper address is used, the U.S. Department of Labor (DOL) likely will deny the labor certification application, potentially incurring significant costs and time to the employer.
The DOL assumes that a U.S. employer will have a physical worksite location for its employees. Per the regulations, a U.S. employer is defined as “[a] person, association, firm, or a corporation that currently has a location within the United States to which U.S. workers may be referred for employment.” As such, employers must have a physical location in the United States to use throughout the PERM process.
The worksite location is used during three parts of the process. First, the location is required for the prevailing wage determination. The prevailing wage is largely based on the area of intended employment to ensure that the correct labor market is tested for potential U.S. applicants. Second, the worksite location must be listed in the PERM advertising and recruitment materials to apprise potential U.S. applicants of the position’s location requirements. Third, the employer’s location is used for the notice of posting informing current employees of the job opening and that the PERM process is underway. The notice of posting must be posted in a location where employees will be able to review it.
Barbara Farmer Memo
Many positions require the employee to travel to unanticipated client sites. In such cases, indicating the correct worksite location can be a challenge. To address this, the DOL issued a field memorandum in 1994, commonly referred to as the Farmer Memo. This memo provides that when a position requires an employee to travel to various unanticipated locations, the employer’s main or headquarters office should be used to file the labor certification. While DOL has largely been silent in regard to remote work or telecommuting, employers generally utilize the provisions of the Farmer Memo when filing PERM applications for remote or telecommuting positions.
Headquarters Rule Applied
The examples below illustrate the application of the Farmer Memo headquarters rule and show the variety of cases encountered with less traditional worksite locations.
An employer is headquartered in Baltimore, MD. The employee is assigned to a client in Springfield, IL for nine months and is permitted to work remotely from home. Per the Farmer Memo, the employer’s headquarters in Baltimore would be used for the prevailing wage, recruitment, and notice of posting. The employee’s assignment to the Springfield client is not fixed and future worksites are unanticipated at this time.
An employee’s time is divided between three locations: 60% at the company headquarters in Phoenix, AZ, 30% at the company office in Philadelphia, PA, and 10% at the company office in Atlanta, GA. Relocation is not required for the position, but travel to various client sites is required. In this case, the Phoenix headquarters would be considered the primary worksite and would be used.
An employer is headquartered in Austin, TX. However, the employee is required to live in the state of California, but not in a particular city, and the employee may telecommute from anywhere in the state. In this case, the employee’s location is considered unanticipated. As such, the Farmer Memo headquarters rule would apply and the Austin headquarters would be used throughout the PERM process.
Retaining Office Space
In the aftermath of the COVID-19 pandemic and the proliferation of remote employment, many employers have shuttered their physical office spaces entirely or have considered doing so. The absence of a physical location can complicate the PERM process.
For businesses that have not migrated to a completely virtual set-up, it is advisable to retain some physical office space for PERM purposes, even if only one office. A business can use the owner’s home address, the address of incorporation, or the address listed on the company’s tax returns. If these are no longer an option, alternative solutions may be available. For instance, the employer can rent a shared office space to which employees can report. In this case, the employer should provide evidence such as a lease agreement or onsite company signage to demonstrate that this is the company’s office.
If posting electronically is a general business practice for an employer, then the employer must do so regardless of a virtual or brick-and-mortar setup. A physical posting is always required in either situation.
Changing Locations and Restarting the PERM Process
In some cases, an employer moves to a new location and the worksite location changes during the PERM process. Depending on the circumstances, the employer may need to restart the PERM process. Details of this scenario are beyond the scope of this article.
While the PERM regulations require a worksite location to be listed for the employer, it has become increasingly complex to determine the correct location in the post COVID-19 employment era of remote work and virtual offices. Considering the wide variety of worksite arrangements employers may have, it is important to consult a skilled immigration attorney to maximize the likelihood of success of the PERM process.
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