Since its inception, the U.S. has acted as a mecca for a wide range of job seekers, but in modern times, immigration authorities have become gatekeepers to protect domestic workers from unfair competition and reduced salaries.
With current high levels of unemployment in many sectors, it might seem counterintuitive for employers to request permission for foreign labor to enter the U.S. job force, but now, more than ever, there is an urgent need for qualified persons who can contribute to economic recovery by infusions of skills in short supply, investments for job creation, and opportunities to train America's lagging technical workforce.
The World Economic Forum reports that momentous changes are underway signaling the emergence of new opportunities. One such change is likely to be the further proliferation of jobs involving telecommuting. Prior to the Coronavirus pandemic, approximately 25% of IT jobs were performed at home, but that percentage is now likely to increase with public acceptance of virtual work and study experiences.
It has not been well understood that petitions may be filed for foreign labor to work at their intended U.S. residence or in other non-traditional workplaces, as long as federal, state, and local laws are respected and conditions of employment and salary do not prejudice U.S. workers.
When specific geographic locations are indicated, job duties may stipulate proximity to specific physical locations in the U.S., logically, if there is a nexus between the job and the place - such as the location of customers or other needs for physical presence.
The principal address for the job opportunity should be listed as the corporate headquarters or remote job site, if a commercial location, provided that the job site has not been chosen on the basis of unlawful criteria such as lower prevailing wages in that geographical area. Additionally, when the job is for work-at-home, the address of the home is not provided; instead, the opportunity is indicated in H-14 on Form 9089, the space provided for special requirements.
Despite the fact that work-at-home jobs do not involve travel, the U.S. Department of Labor (DOL) considers telecommuting to be potentially restrictive, depending on the perspective of individual workers, and, therefore, opportunities to work from home must be included in PERM labor certification recruitment. It stands to reason that jobs requiring close supervision may not be suitable for work-at-home, and placement of jobs with third parties is a red flag as there may be issues of control that undermine the employer-employee relationship.
Foreign business entities may file applications for temporary work visas and PERM labor certification applications for employment in any appropriate U.S. jurisdiction as long as they are properly domesticated, i.e., registered as a foreign entity under state or territorial law.
The registration procedure is simple and inexpensive. Employers should use a business address, even a virtual one, to register with the Secretary of State in the jurisdiction where they choose to establish a base of operations, apply for a Federal Employer Identification Number, and open a bank account. In addition, there must be a physical location, such as a work area or conference room, for U.S. workers to report for interviews.
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