PERM Prevailing Wage RFIs: A New Focus on "Unanticipated Locations"

The PERM process for green card sponsorship is already notorious for its complexity, and a recent uptick in Requests for Further Information (RFIs) is adding another layer for employers to navigate. Specifically, the Department of Labor (DOL) is scrutinizing the frequency of visits to "unanticipated locations" for certain positions. Let's break down what this means and why it matters.

The RFI in Question

The DOL is increasingly issuing RFIs that ask:

• How often does the beneficiary travel to unanticipated locations?
• What percentage of their time is spent at these locations?
• What activities are performed at these locations?

This line of inquiry is particularly common for positions involving travel, such as IT consultants, sales professionals, or field engineers.

The Farmer Memo and Its Significance

The "Farmer MemoFarmer Memo" (published in 1994 by the DOL) provides guidance on determining the work location for PERM purposes. For roles involving travel to unanticipated locations, the memo states that the employer's headquarters (or a home office) should be the designated work location. This is because the employer can't reasonably predict where the beneficiary will be traveling.

The Disconnect

The recent RFIs seem to contradict the Farmer Memo's guidance. By asking about the frequency of visits to unanticipated locations, the DOL implies that these locations could be the actual worksite, not the headquarters. This is problematic because:

1. It creates uncertainty: Employers are left wondering whether to list the headquarters or the most frequent travel location as the worksite.
2. It increases the risk of audits: Inconsistent information between the PERM application and the RFI response could raise red flags for the DOL.
3. It impacts prevailing wage determination: The work location directly affects the prevailing wage level assigned to the position.

What Employers Should Do

If you receive an RFI asking about unanticipated locations, here's how to approach it:

1. Review the Farmer Memo: Familiarize yourself with its guidance on work locations for positions involving travel.
2. Consult an immigration attorney: Seek expert advice on how to respond to the RFI accurately and effectively.
3. Gather detailed information: Collect data on the beneficiary's travel patterns, including frequency, duration, and activities performed at each location.
4. Emphasize the headquarters: In your RFI response, clearly state that the headquarters is the designated worksite and explain how the travel fits within the job duties.

The Bigger Picture

This increased scrutiny of "unanticipated locations" is part of a broader trend of the DOL tightening PERM regulations. It's crucial for employers to stay informed about these changes and work with immigration professionals to ensure compliance and avoid delays in the green card sponsorship process.

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