Employer listed
“Houston, TX” (the place of the beneficiary’s residence) as the
geographic area of employment, when in fact, the position is more
flexible and allows the person to work from home thefore, BALCA
found that the employer’s ads unduly restrictive and upheld the denial.
The Employer
stated that the primary worksite address in the ETA Form 9089 is the same as
the foreign worker’s address because the job opportunity affords the Field
Service Engineer to work from home and travel to various client sites as needed.
·
The CO concluded, after reviewing the
documentation, the employer did not offer the condition to work from home to
U.S. workers. As a result, the CO denied the application pursuant to 20 C.F.R.
§ 656.17(f)(7), which states that advertisements must not “contain wages or
terms and conditions of employment that are less favorable than those offered
to the alien,” and 20 C.F.R. § 656.10(c)(8), which requires employers to attest
“[t]he job opportunity has been and is clearly open to any U.S. worker.” (AF
10).
·
In
its Request for reconsideration employer argued there is no regulation that requires advertisements to indicate that
the geographic location is a home office.
·
The Employer
relied on the minutes from the Department of Labor’s (“DOL’s”) March 15, 2007
Stakeholders Liaison Meeting to support its position that the recruitment was
properly conducted based on the worksite address indicated on the ETA Form
9089. Additionally, the Employer stated it complied with 20 C.F.R. § 656.17(f)
because the ad “did not contain terms and conditions of employment that are
less favorable than those offered to the alien.” It concluded “there is no
regulatory prohibition from using a home address in recruitment efforts.”.
·
The CO however upheld
his denial under 20 C.F.R. §§ 656.10 and 656.17(f)(7), stating: “Not informing
U.S. workers they would work from home, rather than from employer’s
headquarters or offices, artificially excludes potentially qualified U.S.
applicants from applying for the job opportunity.”
CO in
its argument with BALCA relied on the below meeting minutes:
DOL’s March 15, 2007 Stakeholders Liaison Meeting,
which state in relevant part:
19. If an employer requires an employee to work from
home in a region of intended employment that is different from the location of
the employer’s headquarters (i.e. work is required to be performed in a
designated county or state that differs from the employer’s headquarters),
please confirm that the prevailing wage determination and recruitment can take
place in the location of the employee’s region of intended employment. Please
confirm that the notice of posting under this circumstance should be posted at
the company’s headquarters.
If the 9089 form shows the worksite at a designated location other
than headquarters, the PWD and recruitment would be for the worksite. AILA
note: this issue essentially requires a strategy decision. The PERM form can
state that the worksite is the home office, in which case the PWD and
recruitment can be for the area of the home office, but the fact that the
worksite is the same as the foreign national’s home address will be picked up
by the PERM system and the case will likely be audited. This can then be
addressed in the audit response and should not be a problem, if the case is
otherwise approvable. Alternatively, the PERM form can state that the worksite
is the headquarters office, but then the PWD and recruitment must be done for
that location.
BALCA rejected
Employer’s argument for the following reasons:
The Employer’s reliance on
these minutes is misplaced. The minutes demonstrate that the Employer did not
err in conducting its recruitment in the area where the alien resides or by
listing the alien’s address as the primary worksite in Section H.1-2 of the ETA
Form 9089. However, the meeting minutes are silent as to what geographic
location should be included in advertisements where the applicant would work
from home. These minutes provide no guidance on the content of the
advertisements.
We find that the geographic
location listed on the advertisements, “Houston, TX,” represents a condition of
employment that is less favorable than that offered to the alien. An applicant
reading the advertisements would be under the impression that he or she was
restricted to working in Houston, Texas. In contrast, the alien was given the option
to work from his residence, which did not necessarily have to be in Houston,
and which greatly expanded the potential geographic location of employment.
Listing the location as Houston, Texas suggested to potential U.S. applicants
that the job location was less flexible than it actually was. See JDA
Software, Inc., 2011-PER-02661, PDF at 2 (Sept. 27, 2012). There is no
indication that the job has to be performed specifically in Houston. In fact,
the Employer indicated that it has customers throughout North America and the
position requires both domestic and international travel.. This suggests that
the geographic location of the job opportunity was not as restrictive as the
Employer led potential applicants to believe. Juniper Networks,
2011-PER-00841, PDF at 3 (Sept. 20, 2012). It appears that the only reason
Houston, Texas was advertised as the geographic location is because that is
where the alien was currently residing. Id. We find that the Employer’s
advertisement was unduly restrictive, misleading, and could have prevented
potential U.S. applicants from applying for the job opportunity. Id.; JDA
Software, Inc., 2011-PER-02661 at 2.
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