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IMMIGRATION SEPTEMBER 01, 2023 | The Indian Eye 42

Changes in Work From Home Policies

After Labor Certification Has Been Filed

CYRUS D MEHTA and the change could mean some- whether the employer requires employer had to repeat the in- but where the employer lat-
thing much worse than a mere any special skills or other re- formation from the ETA 9141 er decides that all employees
JESSICA PASZKO*
change of work scenery. For quirements (F.b.5). In F.b.5, the in the relevant boxes. Many of must report to the office five
instance, if the employer in- employer clearly must list any the approved labor certifica- days a week? Arguably, the la-
s a response to the dicated in its test of the labor tools, software, or programs tions are under the old ETA bor certification should not be
COVID-19 pandemic,
Aemployers implement- market that the position allows that the employee is required 9089. deemed invalid in such a sce-
Once the ETA 9141 is cer-
ed telecommuting policies, and telecommuting and then later to know for the position, but tified by the DOL, employers nario because the labor market
the employer should also use
requires all employees to report
test was conducted in the area
work-from-home became the to the office, could the labor this field to list other key in- can move onto the second stage of intended employment, i.e.,
norm for much of the work- certification be deemed invalid? formation about the job, such of the PERM process which is the company’s main office or
force. Three years later, many The PERM labor certifica- as that telecommuting is per- to conduct a series of manda- HQ, which is where the for-
of those employees are dusting tion process is typically begun mitted. The ETA 9141 also re- tory and optional recruitment eign worker will need to report
off their lunchboxes and iron- by submitting the Department quires the employer to provide steps to confirm that there are to. Additionally, by issuing the
ing their work suits as their em- of Labor (DOL) Form ETA the full address of the place of not sufficient U.S. workers who labor certification, the DOL
ployers call them back to the of- 9141, Application for Prevailing employment (F.e). Based on are “able, willing, qualified, and determined that there are not
fice. While the turning back of Wage Determination (PWD). the regulations’ definitions of available at the time of appli- sufficient U.S. workers who
these policies may be met with Some key “Job Offer Informa- employment and employer, cation for a visa and admission are able, willing, qualified and
groans from employees who tion” that ETA 9141 asks for in the “place of employment” into the United States and at available at the time of appli-
grew comfortable in their home Section F is the job title (F.a.1), has been interpreted to mean the place where the alien is to cation for a visa and admission
offices, for foreign nationals in job duties (F.a.2), the minimum a physical office or location in perform the work”, i.e., the into the U.S. and at the place
the process of being sponsored degree (F.b.1) and experience the U.S. Specifically, 20 CFR labor market test. 20 CFR § where the alien is to perform
for permanent employment,
requirements (F.b.4), and § 656.3 defines employer as a 656.1(a)(1). The employer’s the work. Indeed, the employ-
“person, association, firm, advertisements must indicate er, by indicating that telecom-
or a corporation that cur- all of the “Job Offer Informa- muting would be allowed, cast
rently has a location within tion” that was listed in the ETA a wider net and potentially
the United States to which 9141, or in the old form it was made the position “available”
U.S. workers may be re- the ETA 9089 and box H.14 to more U.S. workers “at the
ferred for employment was answered. The recruitment place where the alien is to per-
and that proposes to em- steps must be conducted in the form the work” since the U.S.
ploy a full-time employee area of intended employment applicant not need be physically
at a place within the Unit- that was listed in Section F.e. present in the employer’s area
ed States . . . . An employer If an employer intends for an of intended employment listed
must possess a valid Fed- employee to work solely at a in the ETA 9141, Section F.e or
eral Employment Identifi- designated worksite, such as a in the old ETA 9089. Therefore,
cation Number (FEIN).”. company office or its HQ, then the labor certification should
In the case of “roving the ETA 9141 need only list not be invalid as the employer
employees”, the 1994 Bar- one worksite location and the properly made the two attesta-
bara Farmer Memo states employer need only conduct tions required by it.
that the employer’s main recruitment in that area of in- But what if the issue was
or headquarters (HQ) of- tended employment. If the em- flipped and now the employer
fice should be indicated as ployer will permit the employee wishes to allow telecommuting
the worksite when a job to perform work remotely from even though the ETA 9141 and
opportunity will require a their home, then the ETA 9141 subsequent recruitment did not
beneficiary to work in var- still need only list the employ- indicate that telecommuting
m of ious locations throughout er’s main or HQ office as the would be permissible? Here,
CYRUS D. MEHTA & PARTNERS PLLC the U.S. that cannot be worksite, but F.b.5 on the ETA the employer’s attestation that
anticipated. Note, the in- 9141, and in turn each of the there are not sufficient U.S.

formation from the ETA ads used in recruitment, should workers who are able, willing,
9141 automatically gets indicate that the employer will qualified and available at the

  included in the ETA 9089, permit telecommuting from time of application for a visa
   
­
€
‚   the DOL form used to anywhere in the U.S. and admission into the U.S. and
electronically submit the Turning back to the ques- at the place where the foreign
labor certification, since tion we posed at the outset worker is to perform the work
the revised ETA 9089 took – what should happen to a la- may be called into question. By
effect on June 1, 2023. Un- bor certification that indicated failing to indicate in its ads that
2 6th Floor

    der the old ETA 9089, the “telecommuting permitted” workers could telecommute

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