Labor Certification Attorney addressing PERM Roving Employee Problem
Employees whose work requires them to continually travel to different work locations, typically called roving employees, requires special attention during the labor certification process. If an Employee works a short period in Columbus, Ohio then moves to Troy, Michigan and then to Dublin, Ohio in one year, this employee is a roving employee in all likelyhood. Normally, a labor certification is filed in the area of intended employment in order to test the U.S. labor market for qualified workers in that area. Arguably, if a foreign national's work location is constantly changing, it becomes difficult to properly test the appropriate labor market and certify there are no qualified employees available to fill the position. If an employee's work location changes after the labor certification and the employer has no intention of returning the employee to the labor certification work location, the labor certification may no longer be valid.
There are certain exceptions for roving employees, but the Department of Labor (DOL) and United States Citizenship and Immigration Services (USCIS) have indicated they review such applications with heightened scrutiny, especially when an employer is downsizing or laying off employees. Thus, it is of utmost importance to ensure all PERM recruitment steps are precisely followed and roving employee issues are preemptively addressed in the I-140 Immigrant Petition for Alien Worker. Employers need to conduct their labor certification recruitment in strict compliance with the PERM regulations or risk drawing the DOL's attention to the case, possibly resulting in supervised recruitment.
A primary concern for roving employees is where the Notice of Filing should be posted. The DOL has indicated that if the employer does not know where the employee's work location will be, a Notice of Filing should be placed at each of the employer's current client worksites. If the employer does know where the employee will be working, the Notice of Filing can be limited to those work locations. Another concern is what prevailing wage should appear on the Notice of Filing. In the situation of roving employees, the prevailing wage should be derived from the area of the petitioner's headquarters.
It is important to keep in mind that an employer's obligation to employ the foreign national employee at the work location specified in the labor certification does not begin until the employee receives their green card. Thus, it will likely be years before the foreign national employee is required to remain permanently at the worksite listed on the ETA 9089 application. Until that time, the foreign national employee can continue to work at various locations as a roving employee. The fact that the employee is not working at the location specified in the ETA 9089 application may cause the USCIS to inquire at the I-140 stage and it is best to preemptively explain such issues in the I-140 Immigrant Petition for Alien Worker.
