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Challenges in Employment-Based Immigration

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Challenges in Employment-Based Immigration 34 • THE FEDERAL LAWYER • May 2017 Challenges in Employment- Based Immigration ‘Location, Location, Location’ DESIREE GOLDFINGER AND PHILIP K. SHOLTS hile businesses have moved into the new millennium by implementing flextime, telecommuting from home offices, and globally mobile employees, immigration law has remained virtually unchanged since before the turn of the 21st century. WToday’s visa processes do not address the needs of the modern workplace, and previously routine requirements for visa processes now are increasingly onerous in view of new workplace realities. The specific location of a foreign worker’s employment has certifies to the attorney general that the intending employer has filed historically been an essential component in employment-based immi- with the secretary an application under section 1182(n)(1).”1 This gration. This is true for both the H-1B visa, the most widely utilized application filed with the secretary of labor, called a Labor Condition temporary work visa for professionals, and for alien labor certifica- Application (LCA), requires the employer to certify that it will offer tion, the most common path to permanent residence for profession- the H-1B worker the higher of either: (1) the actual wage paid to the als and skilled and unskilled workers. The location of employment is employer’s other employees at the worksite with similar experience utilized when balancing the interest of protecting the wages of the and qualifications for the specific employment in question, or (2) U.S. worker versus the need to bring foreign workers into the United the prevailing wage for the occupational classification in the area States. Is the foreign worker being paid less than a U.S. worker at of intended employment.2 In this manner, the LCA ensures that the that same location, thereby deterring the U.S. employer from hiring a foreign worker is being paid a salary commensurate to that of U.S. U.S. worker? Are there no minimally qualified U.S. workers avail- workers at the same work location and that the foreign worker is not able in that specific geographic location to perform the job, thereby being hired as a cheaper labor alternative that may take jobs away necessitating that a foreign worker be granted permanent residence from U.S. workers. in the U.S. to alleviate the labor shortage? These questions, formu- As further evidence that the concept of a foreign worker’s loca- lated at a time when the American workforce was less mobile, are tion of employment has historically been rooted within the realm of increasingly difficult for employers to answer today. the DOL, the “area of intended employment” for which the employ- er must make the relevant attestations in the LCA, is also defined Work Location and the H-1B Visa and governed by DOL regulations. The definition of the “area of Historically, the location of employment has been a concept regu- intended employment” is critical because the employer must obtain lated primarily by the U.S. Department of Labor (DOL). As back- a DOL-certified LCA for each area of intended employment. The ground, the Immigration and Nationality Act (INA) defines an H-1B DOL defines the “area of intended employment” as “the area within nonimmigrant worker as “an alien … who is coming temporarily to normal commuting distance of the place of employment where the the United States to perform services … in a specialty occupation H-1B nonimmigrant is or will be employed.” The DOL further clari- … and with respect to whom the secretary of labor determines and fies that normal commuting distance may vary. Any location within May 2017 • THE FEDERAL LAWYER • 35 a single metropolitan statistical area (MSA) or primary metropolitan approved petition.… In the case of an H-1B petition, this require- statistical area (PMSA) is deemed within normal commuting dis- ment includes a new labor condition application.”7 tance. However, the borders of the MSA or PMSA are not necessarily Despite referencing the LCA in the regulations, USCIS has long controlling, and locations outside of the MSA or PMSA may be within maintained the position, through a series of nonbinding guidance mem- normal commuting distance.3 In contrast, all locations within a con- os, that a change in work location is not considered a material change in solidated metropolitan statistical area (CMSA) will not automatically employment requiring the filing of an amended H-1B petition. be deemed within commuting distance.4 The DOL also defines the “place of employment” where the H-1B The Hogan Memo nonimmigrant is or will be employed. Specifically, a location is not One of the earliest guidance memos on whether a change in work considered a worksite requiring a certified LCA if the worker travels location is considered to be a material change in employment to that location for professional developmental activities such as was issued in October 1992 by James J. Hogan, executive associ- conferences or seminars. Additionally, a location where the H-1B ate commissioner of operations with the legacy Immigration and worker may be present on a casual or short-term basis (a single visit Naturalization Service (INS). In addressing scenarios in which an not to exceed five consecutive workdays for a worker who travels amended H petition must be filed by an employer, the Hogan Memo frequently, or 10 workdays for a worker who travels occasionally), is explained that “the mere transfer of the beneficiary to another The DOL also defines the “place of employment” where the H-1B nonimmigrant is or will be employed. Specifically, a location is not considered a worksite requiring a certified LCA if the worker travels to that location for professional developmental activities such as conferences or seminars. not considered a worksite. However, the DOL clarifies that the dif- worksite, in the same occupation, does not require the filing of an ference between a “non-worksite” location and a “worksite” location amended petition provided the initial petitioner remains the alien’s is ultimately dictated by the worker’s job functions, rather than the employer and, provided further, the supporting labor condition nature of the employer’s business.5 application remains valid.”8 Finally, the DOL provides an exception to the LCA requirement for short-term placement of H-1B nonimmigrants outside the area of The Aleinikoff Memo intended employment listed on the LCA. Under the short-term place- Legacy INS also issued a memorandum on Aug. 22, 1996, in an ment rule, an H-1B nonimmigrant can work for up to 30 workdays attempt to clarify its prior guidance regarding what would be con- in a one-year period outside the area of employment listed on the sidered a material change in the terms of employment requiring the LCA without a new LCA, or up to 60 days in a one-year period when filing of an H-1B amendment. Authored by T. Alexander Aleinikoff, the nonimmigrant maintains his or her residence at the permanent executive associate commissioner, the Aleinikoff Memo built upon worksite and continues to spend a substantial amount of time at the the Hogan Memo and explained that “the mere transfer of the bene- permanent worksite. An employer utilizing the short-term placement ficiary to another worksite, in the same occupation, does not require rule is subject to other protections for U.S. workers, however, such the filing of an amended petition, provided the initial petitioner as requirements that the employer pays for the foreign worker’s lodg- remains the alien’s employer and, provided further, the supporting ing and actual cost of travel, as well as ensuring that the employer labor condition application remains valid. An amended H-1B petition does not assign the foreign worker to a worksite where there is a must be filed in a situation where the beneficiary’s place of employ- strike or other labor dispute.6 ment changes subsequent to the approval of the petition and the While it is clear that an H-1B employer must obtain the requisite change invalidates the support labor condition application.”9 certification from the DOL hew n there is a change in the area of intended employment for a foreign worker, the question of what, The Russell Letter if anything, U.S. Citizenship and Immigration Services (USCIS) Following the Aleinikoff Memo, INS and successor USCIS continued requires when a foreign worker changes worksites has been a to issue guidance letters that reinforced the concept that an amend- long-debated topic. As discussed, the protection of U.S. workers at ed petition would not be required if an LCA was filed and certified for the worksite is regulated exclusively by the DOL; USCIS does not the new employment location. Acting Branch Chief of INS Business directly address work location in its regulations. USCIS does, howev- and Trade Services Isiah Russel Jr. wrote in 1997 that “an amended er, provide that an H-1B employer must file an amended petition “to petition need not be filed in a situation where the alien is transferred reflect any material changes in the terms and conditions of employ- to another location where the petitioner had previously obtained a ment or training or the alien’s eligibility as specified in the original certified labor condition application.”10 36 • THE FEDERAL LAWYER • May 2017 The Simmons Letter formed by the USCIS Fraud Detection and National Security Director- Similarly, INS Branch Chief of Benefits and Trade Thomas W. Sim- ate prior to Simeio revealed a fraud rate of less than 1 percent for the mons wrote in 1998 that “an amended petition need not be filed to H-1B visa program.21 The most notable result of the Simeio decision is reflect the change in job locations.
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