Employer’s Headquarters May Be Used for Roving Employees
From: USADNEWS Volume XI, Issue 7
When placing advertisements for a labor certification application, it is crucial to advertise in the area where the job is located so as to conduct an accurate test of the labor market to determine if there are any workers in the United States who are willing, able, and qualified to fill the position. The work site will also affect the prevailing wage determination that is used. When filing a case for roving employees, it can be tricky to determine the appropriate area where the recruitment should be conducted.
In the Matters of Amsol, Inc. (September 2009), the Board of Alien Labor Certification Appeals (BALCA) addresses this issue. Amsol, Inc. appealed the Certifying Officer’s (CO) rejection of its application on behalf of several employees for whom it sought labor certification. The employer had conducted recruitment in Casper, Wyoming, where its company headquarters is located. The positions for which it was recruiting were not based out of this location, but instead were to be performed at unanticipated client sites across the U.S. The employer admitted that it was unsure of which location it should use to advertise the positions as the regulations are unclear in the case of roving employees. The CO rejected the employer’s explanation and concluded that “the Casper job site was a virtual location used to file labor certifications where the test for U.S. worker availability in the technology field would be slim to none.”
Since the regulations offer no guidance on the issue of unanticipated job locations, the Board referred to the Field Memorandum issued on May 16, 1994 by the Employment and Training Administration (ETA). In eBusiness Applications Solutions, Inc. (December 2006), BALCA held that the Memorandum fills a gap in the statute and implementing regulations” even though it is not a regulation with the full force of law. This Memorandum states that “[a]pplications involving job opportunities which require the Alien beneficiary to work in various locations throughout the U.S. that cannot be anticipated should be filed with the local Employment Service office having jurisdiction over the area in which the employer’s main or headquarters office is located.”
Although the Board in eBusiness Applications Solutions, Inc. considered the Memorandum to be “a reasonable construction of the regulations given the underlying purpose of the statute,” it did not impose what the current panel referred to as an “inflexible mandate about a filing location.” The Board in that case was also careful to warn against an employer deliberately choosing a remote location to “avoid recruiting in a more relevant labor market.” For instance, BALCA rejected an employer’s appeal in the Matter of Paradigm Infotech (June 2007) because the employer chose to recruit for roving IT positions in Erie, Pennsylvania. Although the employer did have an office in Erie, BALCA determined that “a mere business connection with a location, standing alone, does not establish that such a location is the appropriate place to make a labor market test.” The ETA Memorandum specifically recommends the use of the employer’s main or headquarters office in cases where employees do not have a fixed work site. The Board determined that the use of the Erie location was intended to artificially lower the appropriate prevailing wage for the positions being advertised.
In the instant case, BALCA determined that the employer had submitted sufficient documentation to prove that the Casper location was indeed a viable work site, and not merely being used for the purpose of avoiding good faith recruitment in a different market. Although that office was small, it was the company’s first office and its place of incorporation. Furthermore, the employer did not solely test the market in Casper, Wyoming, but also advertised the positions in Computerworld, which is a nationwide trade publication. The issue of the prevailing wage being negatively affected by advertising in a smaller market was put to rest by the fact that the employer was offering a salary that was higher than either the prevailing wage in the Casper location or the prevailing wage at the company’s other office in Newark, Delaware. Consequently, the Board vacated the CO’s denial of the application.
This case provides helpful criteria for determining the appropriate location to advertise positions for roving employees. The base guideline is to advertise in the area where the employer is headquartered. The location must be a viable work site and not merely a satellite office created for the purpose of filing labor certification applications. In the case of a denial and appeal, the Board may take into consideration how the prevailing wage determination is affected by the choice of work site.