Introduction
In October 2021, Amazon announced that its offices would have the flexibility to be completely remote, laying the foundation of the remote office as a permanent fixture of the American workplace.1 As of the end of 2021, powerful Silicon Valley technology companies had delayed a return to full-time in person work.2 These tech giants also happen to be the biggest employers of immigrant and nonimmigrant workers.3 In 2021, the top employers with H-1B nonimmigrant workers who work in specialty occupations4 included Amazon, Apple, Facebook, Google, IBM, Microsoft, and more.5 However, the decision to make the office remote may affect the future employment authorization of specialty occupation immigrant and nonimmigrants.
When applying for certain work visas, an employer must file with the U.S. Department of Labor (DOL) and is required to conduct a labor market test.6 The purpose of the labor market test is to demonstrate that there are not sufficient U.S. citizen (USC) workers who are qualified for the job, and that the employment of a foreign national will not adversely affect the wages and working conditions of similarly, locally employed USCs.7 The labor market test includes a prevailing wage determination (PWD) of occupations in the geographic area of intended employment, which measures the median wage of workers similarly employed.8 However, now that many foreign nationals are working remotely, this throws the worksite location of noncitizen workers into doubt.
This Note argues that the current labor market tests of a worksite location requirement for immigrant visas, which require DOL Program Electronic Review Management (PERM), its accompanying Labor Certification Application, and Labor Condition Applications (LCAs) for specialty occupation nonimmigrant visas, are outdated in the remote workspace and must be addressed by the DOL through the lens of cooperative federalism.9 Part I begins with a background on nonimmigrant specialty occupation visas and immigrant visas, then examines the DOL’s PERM and its LCA. Part I also lays the groundwork for a proposal of a new labor market test by demonstrating cooperative federalism of the employment-based immigration process. Additionally, Part I addresses the looming offshoring of specialty occupation noncitizens with the rise of remote work, which demonstrates the stakes of this issue. Part II analyzes the current challenges of applying for immigrant and nonimmigrant visas in the remote workspace without a worksite location while following the DOL’s so-called Farmer Memo.10 Then, Part III proposes and examines solutions to ensure the efficacy of employment-based visas for remote work, arguing that the DOL should adopt a cooperative federalism model of remote work by splitting power between the federal DOL, the state DOL of the employer’s worksite location, and the state DOL of the remote employee’s actual location.11
I. Background
A. Nonimmigrant Visas
A nonimmigrant visa is a temporary work visa for foreign nationals.12 There are several visa classifications depending on the kind of work performed.13 Nonimmigrant visa classifications for specialty occupations, particularly the H-1B visa, require an LCA, which submits a labor market test to the DOL.14 A specialty occupation is defined by the Immigration and Nationality Act (INA)15 as a job that requires specialized knowledge and a relevant bachelor’s degree, or its equivalent, at minimum.16 Specialty occupation nonimmigrant visas are used especially to supplement the country’s labor force in technology-related fields.17
The main purpose of the LCA is to ensure that the wages and working conditions offered to nonimmigrants will not be less favorable than those available to USC workers.18 Furthermore, the Immigration Act of 1990 created the LCA with the rationale to ensure that the needs of USC workers are balanced with the average salary of the physical location of employment.19 Specialty occupation nonimmigrant visas include the H-1B visa, which will be described below.20
1. H-1B Nonimmigrant Visa
H-1B holders fill a critical need in the American market, as they are particularly popular among the science, technology, engineering, and math (STEM) fields.21 For example, in 2021, Amazon filed over 14,000 LCAs for H-1B visa applications.22 The purpose of the H-1B visa is to allow employers to hire people with specialized knowledge that employers cannot otherwise obtain from a USC worker.23 In addition to salary and benefits, American employers pay approximately $5,000 to $30,000 in legal and government fees for a single H-1B petition.24
Before applying for an H-1B visa to United States Citizenship and Immigration Services (USCIS), the employer must file an LCA with the DOL to demonstrate satisfaction of the labor market test.25 There is an annual cap of 65,000 visas, with 20,000 additional visas for applicants with a Master’s or Doctorate degree from an American educational institution.26
Other specialty occupation visas that are subject to an LCA are nationality-specific because of international treaties. The H-1B1 visa is similar to the H-1B visa but is only available for Chilean and Singaporean nationals in specialty occupations.27 The visa was created because of the Singapore-United States Free Trade Agreement and the Chile-United States Free Trade Agreement.28 H-1B1 visas are limited to 5,400 Singaporeans and 1,400 Chileans per year.29 The E-3 nonimmigrant visa is a specialty occupation visa exclusively for Australian nationals.30 It was created via the Australia-United States Free Trade Agreement.31 E-3 visas are limited to 10,500 individuals annually.32 For the purposes of this Note, specialty occupation visas will be analyzed under the H-1B visa because it is not nationality-specific, and thus apply to a larger group of nonimmigrant visa holders.33
2. The Labor Condition Application
All applications for specialty occupation nonimmigrant visas listed above require that the employer receive an approved LCA for each potential noncitizen employee before applying to USCIS.34 The purpose of the LCA is to ensure that a foreign national worker is paid a salary commensurate to a USC worker at the same work location and that the foreign national is not hired as a less costly alternative to a USC.35 Once an LCA is approved by the DOL, an employer may continue the two-step process to apply to USCIS for its foreign national employees to be hired with an H-1B nonimmigrant visa.36 USCIS then selects employers’ applications pursuant to USCIS’s caps and applicant eligibility.37
B. Immigrant Visas
Every year, the United States gives legal permanent residency (LPR) status, commonly referred to as a green card, to approximately one million noncitizens.38 Those classified under an employment-based immigrant visa provide needed skills to the American workforce.39 The INA gives five preference categories of employment-based immigrant visas: “(1) people of extraordinary ability; (2) professionals with advanced degrees; (3) skilled and unskilled ‘shortage’ workers for in-demand occupations (e.g., nursing); (4) categories of ‘special immigrants’;40 and (5) immigrant investors.”41 For the second and third categories, an employer must use PERM to apply for and receive an approved labor certification application.42 The logical path for an employer to sponsor a specialty occupation nonimmigrant worker (such as an H-1B visa holder) for a green card is through the second or third based employment categories.43
1. Program Electronic Review Management
The DOL’s PERM process is initiated by an employer to grant LPR status.44 The INA delegates the DOL to certify the permanent employment of second and third preference green card applicants.45 The DOL created this approach to streamline a formerly two-tiered process between state employment securities agencies, where the job was physically located, and the federal DOL.46 The PERM process is a multi-step operation.47
In preparation for initiating PERM, an employer needs to demonstrate that it tried to recruit a USC worker for no more than 180 days in order to prove that a USC would not be better suited for the job than a foreign national.48 This includes a physical Notice of Filing (NOF) advertisement for the job and recruitment.49 Additionally, the employer needs to conduct a PWD in order to conduct a labor market test.50 For the labor market test, PERM requires the location of intended employment in order to assess the job opportunity.51 An area of intended employment is defined as within normal commuting distance of the address of the workplace.52
The PERM process is then started when the employer files ETA Form 9089 with the DOL, which analyzes local labor market needs and average wages in the physical location of the position, conducting a PWD.53 Once submitted, applications are screened, and then certified, denied, or selected for audit.54 An employer’s application can be selected for PERM audit randomly or if the selection criteria of the applicant are flagged as problematic.55 If approved, the employer can file an employment-based immigrant visa petition with USCIS.56 Then, the employer may file for adjustment to LPR status.57 In addition to paying salary, employers spend approximately $10,000 to $15,000 in legal and administrative fees to sponsor an employee for LPR.58
C. Immigration and Federalism
Immigration law today is mostly regulated by the federal government.59 However, prior to the end of the nineteenth century, immigration was subject largely to state regulation.60 The plenary power doctrine has since expanded federal control over immigration.61 In 1889, the Supreme Court held in Chae Chan Ping v. United States that the federal government has the exclusive power to control immigration because of constitutional and extra-constitutional concerns, creating the plenary power doctrine.62 The rationales for upholding federal authority in immigration law are justified by notions of sovereignty, a united voice in foreign affairs, and uniformity of naturalization.63 While the plenary power doctrine preempts most state action in the context of immigration, states maintain some authority.64 Congress grants key power to the states to control traditional state powers, including criminal law and employment law.65
Indeed this shared power can be seen in the DOL labor certification processes.66 The DOL issues regulations for employers to demonstrate that a proffered wage meets the average wage in the relevant physical location.67 State calculations for noncitizens’ average wages in a particular field influence the DOL’s decision to green light candidates for immigration applications based on whether their proffered wage is sufficient to not adversely affect local USC wages and working conditions.68 Thus, the DOL’s state workforce agencies’ information causes state determination to have an effect on the DOL’s final decision.69 Since the passage of the Immigration Reform and Control Act (IRCA) and the Illegal Immigration Reform and Immigration Responsibility Act (IIRAIRA),70 which expanded federal immigration power, immigration scholars have argued for a better balance of power between the federal government and the states.71
This Note argues for reshaping remote, employment-based specialty occupation immigration into a cooperative federalist system, where the federal government grants state DOLs more responsibility for selecting remote noncitizens for labor certification, while simultaneously sharing power with the federal government.72 Given the inefficiencies of the federal DOL and USCIS to effectively handle modern remote work for approximately thirty years,73 cooperative federalism is the next step.
D. Addressing Offshoring
With the expansion of remote work, there is the possibility of a nativist backlash arguing that foreign nationals should be offshored to their countries of origin.74 There is a host of arguments in favor of offshoring, such the ability to cut costs for employers.75 Particularly, employers would save on salary for foreign national employees and fees of visa sponsorship.76 However, with offshoring, prolific American companies could be seen as condoning controversial foreign labor practices.77 For example, studies have shown that offshored companies in India have difficulty adhering to labor laws.78 Studies have also shown the consequences of offshoring include American unemployment, declining living standards, deindustrialization, and legal issues of employment-at-will.79 Offshoring particularly affects jobs in information technology (IT), which are often held by noncitizen workers.80 Offshoring remote noncitizen workers would prevent immigrant and nonimmigrant visas from undergoing a labor market test because the DOL would no longer regulate their foreign jobs and salaries.81 This could harm both foreign national workers and USC workers because foreign nationals could be undercut for salaries, and USCs could lose job opportunities because American employers could pay foreign nationals abroad less without regulation from the DOL.82
Although the possibility of offshoring looms, the reaction of employers during the array of travel bans during the COVID-19 pandemic serves as strong evidence that employers largely do not want to offshore their foreign workers employed on immigrant and nonimmigrant specialty occupation visas. In June 2020, President Donald Trump suspended the entry of certain foreign nationals, including H-1B visa holders and PERM applicants who were outside the United States, to reduce the spread of COVID-19.83 Large companies, such as Microsoft and Tesla, rallied behind their foreign national employees.84 Large employers of immigrant and nonimmigrant workers, including Amazon, Apple, Google, Facebook, Salesforce, Spotify, and more, filed an amicus brief supporting foreign nationals who filed for injunction.85 This demonstrates that employers remain committed to the employment of foreign nationals on the ground in the United States, even when performing their work remotely. Therefore, this Note offers a solution to keep specialty occupation noncitizen workers in the United States to keep the economy stable and meet the needs of American employers.
II. Analysis
The physical worksite location requirements for DOL certification has proven to be a challenge in the remote workspace, both during the COVID-19 pandemic and even before the rise in the popularity of telework.86 It is unclear under current guidance how a foreign national working remotely in the United States can apply for PERM, for an immigrant visa, or for a specialty occupation nonimmigrant visa without an official worksite location.87 Now, during the revolution of white-collar American work,88 there is still a lack of modern guidelines on how employers can effectively apply for certification of their remote noncitizen workers located in the United States, with the backdrop of decreasing relevancy of the physical worksite location.89
For example, an H-1B specialty occupation nonimmigrant employee with LCAs who is working in locations within the United States other than those that were certified violates the terms of their visa.90 Additionally, they must be paid pursuant to the prevailing wage of their physical worksite area.91 Thus, it is unclear how to conduct a nonimmigrant worker’s PWD if their physical location differs from or conflicts with the location of their employer. Furthermore, an employee with a filed PERM for a green card could be stuck in the same location until their LPR approval.92 For example, if a foreign national chooses to move and wants their offered position to be in their new location, the PERM process must restart for local labor certification, which is likely the case for a position that is moved remote.93 This Note later proposes that a shift to a cooperative federalist model for remote specialty noncitizen workers, creating a new remote labor market test with the states, would resolve the issues analyzed below.94
A. Nonimmigrant Visas
The main guidance on specialty occupation nonimmigrant visa holders working somewhere other than the physical worksite location specified on their LCA, within the United States, is found in the 1994 DOL Farmer Memo.95 The Farmer Memo provides instructions on how to phrase travel and relocation requirements for employers’ LCAs and recruitment advertisements.96 Additionally, it states that for noncitizen workers who will work at various unanticipated worksites in the United States, employers should indicate this situation on the employee’s LCA, accompanied by a short statement explaining why it is not possible to predict worksite locations.97 The memo also asserts that the location of telecommuters in the United States for recruitment purposes is a company’s headquarters.98 The DOL clarified in 2015 that the Farmer Memo remains the controlling guidance for employees who do not work at a fixed location in the United States, for example, for telecommuters.99 The DOL confirmed again in 2020 at the onset of the COVID-19 pandemic that the Farmer Memo is still the prevailing guidance.100 Although the Farmer Memo provides some guidance on which worksite location is used for the LCA when that location is unclear, the memo is almost thirty years old, and even before the COVID-19 pandemic, did not sufficiently address a proper labor market for today’s remote worker.101
At the start of the COVID-19 pandemic, the DOL addressed office closures and offered guidance on how to manage LCAs when nonimmigrant workers were no longer working at the listed and approved physical worksite location in the United States.102 For those with an already approved LCA with an unintended worksite change, such as working from home, this situation does not warrant a new LCA filing.103 However, this applies only in the limited case when a nonimmigrant worker performs work off-site for a thirty-day period and maintains an office and lives within the geographic area of the physical worksite.104 This workaround may not be viable for a permanent remote office situation because it seems to only serve as a short-term solution.105
Employers risk a great deal financially based on whether the law completely allows future remote work in the United States for their specialty occupation nonimmigrant employees because they may be found to have misrepresented a material fact regarding an LCA’s worksite location.106 If an employer is not in compliance with laws and regulations regarding LCAs, including a misrepresentation of a material fact, it is subject to a civil monetary penalty of approximately $1,900 per violation, in addition to the existing costs of merely filing for noncitizen job applicants.107 The employer could also be subject to disqualification from approval of petitions for up to three years or other administrative remedies, which would temporarily prevent its hiring of foreign nationals altogether.108
1. The Labor Condition Application’s “Area of Intended Employment” and Notice Requirements
Now that a specialty occupation nonimmigrant visa holder may be working remotely, there is an open question of how to define the worker’s area of intended employment in the United States as required by the LCA.109 To fulfill the LCA’s “area of intended employment” listing requirement,110 an employer must get a DOL-certified LCA for each area of intended employment for the employee, unless it is a short-term placement.111 Currently, an H-1B visa’s location requirement for an “area of intended employment” is defined as an area within normal commuting distance of the worksite location.112 This definition may vary: a single metropolitan statistical area (MSA) or a primary metropolitan statistical area (PMSA) are deemed within normal commuting distance.113 However, a consolidated metropolitan statistical area (CMSA) will not automatically be deemed within normal commuting distance.114 These area designations are important for conducting accurate labor market tests. At the onset of the COVID-19 pandemic, the DOL clarified that an employee may continue working for their employer within their area of intended employment.115 However, if the employee moves or works somewhere not in commuting distance within the United States, it appears that the foreign national is no longer within the bounds of their LCA. Although MSA, PMSA, and CMSA are used to statistically measure spatial income differences between metropolitan labor markets, they have an even more defined role to play in this Note’s proposal of a new remote labor market.116
The H-1B visa also requires notice when the nonimmigrant worker’s place of employment changes outside the physical area of employment in the United States, which, during the move to fully remote work, created absurd results.117 Here, the employer must obtain a new LCA and file an amended H-1B petition.118 An employer must provide notice on its website or physical notices at the place of employment in at least two conspicuous places, where they must be available for public inspection.119 However, when an employee transitions to remote work at home, outside the geographic metropolitan area, they are put in an uncomfortable position. They can either post their hard-copy LCAs publicly outside their home, which include personal information like their annual salary range,120 or post electronic LCAs. The latter option is not advisable to employers because it is unclear which employees must be notified of the new LCA and through which electronic medium.121 When presented with this predicament before the COVID-19 pandemic, the DOL responded that it does not expect nonimmigrants to post the LCA at their homes, but the employer must file a new LCA. 122 These two pieces of guidance taken together are unclear. The DOL reaffirmed its stance in 2020 during the COVID-19 pandemic.123 Lack of clarity in notice requirements for specialty nonimmigrant workers places the employer in danger of a DOL audit, penalty fees, and other more costly consequences.124
2. Minimal USCIS Guidance
The DOL almost exclusively regulates specialty occupation nonimmigrant labor.125 USCIS, which does not directly address worksite locations in its regulations of specialty occupation nonimmigrant visas, has provided minimal guidance for off-site work in the United States.126 USCIS via administrative memoranda has consistently taken the position that an employer of specialty occupation nonimmigrant visa workers must file an amended visa petition for any material changes to the terms and conditions of employment.127 The DOL’s COVID-19 pandemic guidelines reaffirmed that if a nonimmigrant with a certified LCA has a material change in employment, then an amended LCA is required.128
In its first decision regarding what constitutes a material change, the USCIS Administrative Appeals Office held in In re Simeio Solutions that an H-1B worker’s place of intended employment is material in the terms and conditions of employment.129 Thus, if this material change places the worker in a new geographical area, a new LCA is required.130 The decision clarified that an LCA’s effectiveness for a nonimmigrant worker depends on the specificity of the place of employment.131 Yet, In re Simeio Solutions does not have a clear benefit to nonimmigrant workers or to the DOL.132 One of the only noticeable effects of the decision was administrative delays in H-1B nonimmigrant workers’ ability to move worksite locations, which made it more difficult for employers to meet their clients’ demands as workplaces became more mobile, even prior to the COVID-19 pandemic.133 The District Court for the District of Columbia recently reaffirmed In re Simieo Solutions in ITServe Alliance, Inc. v. Department of Homeland Security, holding that employers must file an amended H-1B visa petition when an employee moves because it is a material change in employment.134 This decision prioritizing physical location is intensely problematic and in need of change. State authorities, which are more knowledgeable of their economies’ needs, as opposed to federal authorities, may be better attuned to local needs, thus, leading to a modern solution.
B. Program Electronic Review Management
There are few DOL regulations addressing the modern remote workplace for employers to sponsor employees for green cards.135 This was already a challenge for PERM applicants, which the COVID-19 pandemic only exacerbated.136 There are multiple moving parts to the PERM process that are affected by remote work.
1. The Notice of Filing
The employer’s NOF must state the physical location of the job it intends to offer to the noncitizen employee in advertisements for the position.137 In the principal relevant decision In re Symantec Corp., the Board of Alien Labor Certification Appeals (BALCA) held that content requirements for advertisements of positions are required to inform job applicants of travel requirements in NOFs.138 However, BALCA later held that travel requirements must be advertised on the employer’s website for recruitment, but its omission in other types of job postings does not violate the regulations.139 The DOL’s inconsistencies on travel requirements in NOFs—highlighted by these two conflicting decisions—contribute to PERM labor certification’s unnecessary complications when a job includes remote work.140
2. The Green Card’s Prevailing Wage Determination
The Office of Foreign Labor Certification (OFLC), a branch of the DOL dedicated to foreign national labor, states that if a foreign national works from home in a region of unintended employment different than the employer’s headquarters, the labor market test, or PWD, should be done for the employee’s physical worksite.141 Although this guidance differs from the Farmer Memo for telecommuters,142 it raises identical issues as to whether a PWD truly provides a fair labor market test because it does not necessarily correspond to the average wages of where the remote employee works.143
3. Travel Requirement Or Relocation Requirement
It is unclear if a position that is completely remote would be considered a travel or a relocation requirement, which affects where the PWD should be conducted.144 BALCA has only considered the question of whether relocation and travel differ, not remote work.145 It is possible that working remotely is currently considered a travel requirement for the purposes of PERM.146 In this scenario, DOL regulations require that an employer filing a PERM application inform any applicants of travel requirements for the offered position through PERM job advertisements.147 Yet, the listed travel cannot exceed the job requirements.148 Moreover, the employer must be able to demonstrate a logical nexus between the job advertisement and the position described in the PERM application.149
BALCA distinguishes job posting travel requirements from relocation requirements in PERM applications.150 In the case of In re Patel Consultants Corp., BALCA stated that travel to multiple unanticipated locations for training and interaction with clients only suggests that the job opportunity includes assignments that need travel.151 Meanwhile, relocation implicates that the employer requires the employee to move to a new location.152 In the context of remote workspaces, the current regulations and In re Patel Consultants Corp. leave open questions as to whether the remote worker has the freedom to relocate.153 Thus, it is unclear if In re Patel Consultants Corp. is applicable to the remote worker.
For unanticipated worksites that require relocation, BALCA has held that an employer may answer “no” to the travel question in a PERM form for PWD.154 However, BALCA only reached this conclusion in In re Technology Consultants-MA, Inc. because the employee’s position had a primary worksite location in Michigan, which required relocation.155 In a remote work situation, it is unclear if an employer would require an employee’s relocation for a primary physical worksite. Therefore, the application of In re Technology Consultants-MA, Inc. to the modern remote worker is murky.
4. Classification as a Roving Employee
Although simply classifying a remote worker as roving appears to be a solution for a proper labor market test, it does not exactly fit the mold of a remote worker. For the purposes of PERM labor certification, a roving employee travels to various unanticipated locations as part of their employment.156 A PERM applicant working remotely can be classified as a roving employee.157 The main guidance on roving employees stems from the Farmer Memo,158 which suggests that the NOF, recruitment, and the PWD should be done within the physical area of the employer’s headquarters.159 Further, the memo suggests that the PWD for roving employees should be sought for all of their multiple physical areas of employment, provided that the multiple physical worksite locations are known.160 This can add to employer’s costs to conduct multiple certifications for each and every employee’s physical worksite location.161 Otherwise, it is unclear if the PWD should only be conducted for headquarters.162
The DOL has not offered much additional guidance on how to process a PERM labor certification for a roving employee.163 Generally, BALCA has held that the NOF, posting, and recruitment should all have matching travel or relocation requirements when an employer applies for PERM for a roving employee.164 In the leading case, In re Infosys Ltd., the employer, in its PERM application and advertisements, described a job posting’s primary worksite as its headquarters, Plano, Texas, “and various unanticipated locations.”165 The OFLC audited the PERM application, and then denied it because “various unanticipated locations throughout the U.S.” described a travel requirement rather than a relocation requirement.166 The employer appealed the decision, arguing that the worksite description was a good faith attempt to accurately describe the roving nature of the position in accordance with the Farmer Memo; thus, the PERM’s denial created a new roving employee standard.167 BALCA ultimately reversed and remanded the OFLC’s denial of the PERM application, conceding OFLC’s lack of both formal and informal guidance on whether to classify roving employees as having a travel or relocation requirement.168 BALCA’s decision in In re Infosys Ltd. confirms that employers should follow the Farmer Memo for roving employees.169 However, classifying a remote worker as a roving employee in practice appears to be a bandage for outdated rules and regulations.170 It is not exactly accurate to say that someone who works remotely is roving because it is unknown if their remote office in the United States changes location.171 Issues of physical location of a home office will be further discussed later in this Note.172
5. Classification as a Telecommuter
While there is some promise in the current telecommuting guidelines for PERM applicants regarding remote work, it appears to cause confusion for adjudicators because applications often trigger audits.173 The DOL states that its roving employee policy is also applicable to a telecommuting employee.174 Thus, the Farmer Memo is applicable, similar to nonimmigrant specialty occupation visas for telecommuters.175 For a position permitting or requiring telecommuting, an employee can perform work anywhere in the United States.176
The OFLC states that telecommuting is an employment benefit that must be disclosed in an employer’s job description to ensure a valid market test.177 However, in accordance with BALCA’s holding in In re Symantec Corp., telecommuting does not need to be disclosed via additional recruitment measures.178 More in line with OFLC, Thomson Reuter’s Immigration Labor Certification Handbook considers that if remote work remains an option or requirement for PERM positions beyond the COVID-19 pandemic, employers must list the employment term in recruitment for the position and in the NOF.179 If an employer were to change its policies and require hybrid work or work completely in person, the employer should state its conditions for the future employment offered through PERM.180 However, it can be difficult for employers to predict what an offered position may look like several years down the line, with the now everchanging workplace or even when an employee decides that remote work better fits their lifestyle.181 If an employer states that a job is in a specified physical location, but then the position ends up being remote within the United States, this situation could trigger an audit.182 Therefore, an employer’s use of PERM telecommuting guidelines may create incessant bureaucratic red tape through constant auditing rather than promoting the seamless hiring of remote PERM applicants.
6. The Home Office as a Physical Worksite Location
BALCA has held that listing a primary worksite as a home office on a PERM application is unduly restrictive and prevents USC applicants from applying for the job opportunity.183 The inability to list a primary worksite as a home office presents a severe obstacle for remote PERM applicants. In In re Siemens Water Technologies Corp., the employer appealed its PERM application denial, arguing that there is no regulation that requires advertisements to indicate that the physical location of an employee is a home office.184 The employer relied on the meeting minutes from the March 2007 Stakeholders Liaison Meeting with OFLC.185 At the meeting, OFLC was asked to confirm if the PWD and recruitment can take place in the employee’s region of intended employment if their employer requires they work in a region other than the location of the employer’s headquarters. OFLC answered that recruitment could be done for the physical worksite location.186 The American Immigration Lawyers’ Association (AILA) inferred from OFLC’s response that PERM applications can be conducted where the physical worksite is a home office, but, it may trigger an audit.187
BALCA stated that the employer’s reliance on the OFLC minutes was misplaced because OFLC did not address physical location in advertisements for PERM job opportunities where the employee would work from home.188 However, BALCA noted the OFLC minutes demonstrated that the employer did not err in conducting recruitment where the employee resides or by listing the employee’s address as the primary worksite.189 Ultimately, BALCA upheld the employer’s PERM application denial because the advertised PERM position was less favorable to USCs than that offered to the current foreign national employee.190
Yet, BALCA’s decision appeared to leave open an interesting possibility for telework recruitment. BALCA later examined this issue in In re Hewlett-Packard Co., where the employer posted its NOF at the current employee’s house in Boston, Massachusetts, while the employer’s headquarters are located in Palo Alto, California.191 Appealing the PERM application’s denial, the employer argued that its posting was permitted within OFLC’s bounds of telecommuting expressed by the agency in the March 2007 stakeholder meeting, consistent with BALCA’s decision in In re Siemens Water Technologies Corp..192 BALCA ultimately agreed with the employer’s argument that the OFLC minutes were not clear.193 However, it clarified that “[a] true teleworking employee is not required to ‘work from home.’”194 Furthermore, BALCA affirmed the adjudicator’s denial of the PERM application because of the program’s legislative history, which required collaboration with local labor departments, since the job opportunity is inextricably linked to the locality of the filing.195
Additionally, BALCA addressed its opening for a possibility of telework recruitment in In re Siemens Water Technologies Corp.196 BALCA clarified its statement, “that the Employer did not err in conducting” recruitment where the foreign national employee resides or by listing their address as the primary worksite, was mere dictum and of no legal importance.197 Considering these two leading, yet conflicting BALCA decisions, it is unclear if recruitment and PWD can be conducted for the physical location of a modern remote worker in the United States.
A lack of clear guidance from BALCA, DOL, OFLC, and USCIS regarding remote positions for PERM applications has resulted in the inconsistency of adjudications.198 BALCA itself has acknowledged that this situation may create due process concerns on how to address an employee’s work location in the PERM process.199 Clearly, the issue of a PERM certification for remote work must be resolved once and for all as the modern remote workspace takes a permanent hold in the reality of the American white-collar worker.200
III. Proposal
This Part analyzes two proposals that have been offered previously, which fall short of being satisfactory, and one new proposal, which could modernize the labor certification of noncitizen remote workers in specialty occupations. Section A looks at a proposal to eliminate the primary worksite location, which proves to be an inadequate solution because it lacks local market involvement. Section B then examines a proposal to change to a federal PWD, which would also be insufficient because it removes local labor concerns entirely from the equation. Lastly, to address the need for shared federal and state power over employment-based immigration, this Note proposes a new labor certification methodology for remote noncitizens by setting up a two-part certification process between the employer’s worksite location and the employee’s physical worksite location. This Part sets forth these proposals in greater detail below.
A. Elimination of the Primary Worksite Location
AILA wrote during notice and comment for the latest USCIS H-1B form that “primary worksite location” should either be removed or be defined to accommodate for the hybrid and remote workspace.201 Furthermore, AILA distinguishes between USCIS’s requirement of a work location and a primary worksite location, which evidences its argument that a primary location does not need to be included in an H-1B nonimmigrant visa application to allow for remote work.202 However, AILA’s comments may be incompatible with federalist principles, which take into account states’ and metropolitan areas’ prevailing wages and locally available USC workers.203 Therefore, a new proposal that incorporates cooperative federalism, which prioritizes the employer’s worksite location and the employee’s physical location in tandem, is needed.204
B. A Federal Prevailing Wage Determination
Although there is the possibility of making the PWD federal in order to remove worksite location completely from the equation, it is unlikely to be successful because it completely eliminates states and localities from the PWD. This course of action has been done in the past with the H-2B program. Here, a PWD would be conducted for the national average of similarly employed workers, rather than only for the specific area of intended employment.205
The DOL proposed a similar change to the H-2B program in 2005, where it would have eliminated the DOL’s local PWD.206 The H-2B program allows employers to hire nonimmigrants to perform manual, nonagricultural labor and is primarily used by small businesses in construction, hospitality, landscaping, and food service.207 Like PERM’s legislative history, the H-2B program worked with State Workforce Agencies (SWAs) to conduct a PWD.208 During notice and comment rulemaking, the agency received comments in opposition, focusing on the loss of the DOL’s expertise in reviewing the needs of local labor from noncitizens.209 Due to these concerns, the agency withdrew the proposed rule.210 If a federal PWD were to be applied to remote noncitizens in specialty occupations, the DOL may face similar backlash.
C. Cooperative Federalism Applied to Remote Labor Certification
Instead of the current procedures outlined in Part II, this Note proposes a new labor market test for remote nonimmigration specialty occupation visas and for PERM applicants, which is decentralized to incorporate cooperative federalism. State DOLs would communicate with each other when a remote worker lives in one metropolitan area, but the employer is located in another metropolitan area.211 The home state DOL can conduct a PWD within the employee’s physical location, which in turn allows them to account for the employee’s contribution to the economy and lessens brain drain to the largest American cities.212 The state DOL where the employer is located would also conduct a PWD for their metropolitan area of work. The employer’s state DOL gets the benefits of the quality of work from a remote noncitizen applicant wherever they may be based in the United States.
While American companies may be tempted to offshore their labor rather than go through this process, economic interests would militate against adopting these measures.213 There have been across-the-board corporate preferences for a greater supply of labor in the United States.214 Additionally, foreign corporations may not want to work in states that appear unreceptive to noncitizens in general, or to their noncitizen workers.215 Thus, a state is incentivized to participate in this program because anti-immigrant policies could result in the loss of investment and exports.216 This element may hinge on the existence of immigrant communities within certain states, which will reinforce competitive economic incentives to adopt this program.217
A cornerstone of this proposal is that further recognizing labor certification as a state and local concern would not displace federal authority to regulate immigration law.218 While the plenary power doctrine renders immigration law as mostly federal, it is clear that a multi-sovereign regime has emerged in practice, as demonstrated by the current labor certification system and its legislative history.219 In this proposal, states would only be given greater input in admission for qualified applicants to multiple state DOLs, while the federal DOL would supervise.220 Although some scholars fear that delegating more immigration power to the states leaves immigrant workers vulnerable to nativism and anti-immigrant sentiment,221 periodic congressional oversight and economic incentives should regulate this concern.222 Indeed, Congress has a role to play in enforcing states’ employment laws by creating a national floor, such as federal minimum wage and child labor laws.223 States must affirmatively ratify this program so that the state DOLs are to act like more than mere “field offices.”224 Each state DOL can produce a slate of desired applicant criteria of which remote workers in fields that it desires can be submitted to Congress and the federal DOL.225 With state ratification, this program can avoid anti-commandeering issues, like, for example, issues raised with the Patient Protection and Affordable Care Act.226
Remote employment-based immigration does not need to remain an exclusively federal concern under the guise of the Farmer Memo; however, it can be divided more into federal and state power.227 While some immigration matters are better left to federal power, there can be benefits of modernization to diversify the centers of decision-making of remote work in the United States. It is thus the goal of the program to provide a framework for the federal and multiple state DOLs to partner to provide a fair labor market test for the employer and employee location.
Conclusion
As demonstrated, the worksite location requirements for the PERM process for immigrant visas and LCAs for specialty occupation nonimmigrant visas have lost their relevance during the revolution of the white-collar remote workspace within the United States under current DOL guidelines. Although on its face foreign nationals working outside the office appears to be a novel legal issue, remote work within the United States has been an insurmountable hurdle in the immigration space since telework gained popularity in the late twentieth century.228 It is possible to apply for both kinds of visas for telework, but adherence to the Farmer Memo appears to be unsustainable.229 It would be in the interest of employers—especially influential Silicon Valley tech companies who are some of the largest employers of foreign nationals—to modify the current guidelines to save costs on audits and appeals, and to retain their employees’ valid immigration status.230
The United States claims to value business growth through an agile workforce to effectively respond to the changing needs of the American business.231 While American companies have swiftly shifted to remote work to accommodate the COVID-19 public health crisis and the revolution of the white-collar workforce, employment-based immigration law remains virtually unchanged.232 Today’s labor certification process for PERM and LCAs for specialty occupation visas do not meet the needs of the American office because outdated physical worksite location requirements are now increasingly onerous for the modern remote workspace.233 As such, cooperative federalism proves to be a useful tool to effectively regulate specialty occupation noncitizen workers to fairly apply local labor market tests.234
As of writing this Note, in the midst of the height of the Omicron variant of the COVID-19 pandemic, businesses that had transitioned back to in-person work are now delaying their return to office plans and completely returning to the remote workspace.235 It appears that the remote office’s permanence may be sealed into the fabric of the white-collar worker, particularly in tech.236 Therefore, the time is ripe for the DOL and USCIS to finally accommodate the needs of American business trends by addressing the physical worksite location requirements for remote specialty occupation noncitizen employees in the United States.