Job related travel can be seen as both a perk and a hassle depending on a worker’s situation. If a job requires travel away from home, workers with families may not want such a position because it takes them away from their families for long stretches of time. However, for other workers travel may be seen as an exciting opportunity to work in multiple locations and to not stay at only one worksite. Since requiring travel for a job may attract some applicants while dissuading others, it is important to list any relevant travel requirements in all advertising and all forms related to a PERM petition.
In reviewing denials of PERM Labor Certification applications the Board of Alien Labor Certification Appeals (BALCA) has long held that listing travel requirements in advertisements that are not listed in the job description for the alien is a “less favorable” term of employment. Essentially, BALCA has stated that using travel requirements in advertisements dissuades potential US workers from applying for a position. The reasoning has been that most US workers will not want to travel for a job. However, recently BALCA has seemingly said that the opposite is true as well: travel requirements can be seen as attractive to US applicants. With this new trend in BALCA decisions travel requirements are considered to be both favorable and unfavorable job requirements depending on the situation.
Travel Requirements Listed in Ads but not on ETA Form 9089
The older BALCA standard for travel requirements is related to where travel requirements are listed in the PERM recruitment process. If an employer required travel/relocation from US applicants but did not list similar requirements for the alien, BALCA sees this as a way to discourage qualified US workers from applying. BALCA considers these types of situations as not being “good faith” recruitment since US workers are seeing a job opportunity with less favorable terms of employment.
A real life example of the lack of “good faith” recruiting related to restrictive travel requirements will help to show BALCA’s reasoning.
Example: An employer filed a PERM petition for an alien. In the mandatory advertising for the position to attract qualified US workers the employer listed “position requires extensive travel.” However, the ETA Form 9089 submitted on behalf of the alien did not require travel. When interviewing US applicants the employer rejected 2 qualified US workers because of their conflicts with travel. One wanted a position with minimal travel while the other was not willing to travel at all. Since these qualified US workers were rejected for reasons that exceeded the employers stated minimum requirements listed on ETA Form 9089, the PERM application was denied.
The above example would not have been a problem if the employer had also listed travel on the ETA Form 9089. If a position truly requires travel, then qualified US workers unwilling to travel would not be suitable for the job. But if there is a discrepancy in the requirements for a job BALCA may see that an employer is making the position much less attractive to US applicants in order to assure that no US workers will want the job.
PERM regulations maintain that advertisements for a position must not contain terms less favorable than those offered to the alien (20 CFR § 656.17(f)(6)). A similar example from regulations is that the wage advertised or posted on a Notice of Filing must not be less favorable than the wage offered to the alien. If US workers see an ad for a job with a salary of $30,000 they may not apply. But if the actual salary for the position (the wage being offered to the alien) is $100,000, then a lot more US workers would probably have applied if they had seen the higher wage in the ad. The same can be true for travel. If US workers saw an ad for a job in the newspaper and it said “36 hour bus ride required every other week” a lot of qualified workers would probably not even bother applying. But if the bus ride was not listed on the alien’s PERM application and workers saw a similar ad without 36 hours of travel required, more people would be likely to apply. When travel is not listed as a requirement/duty for the alien beneficiary of a PERM there are questions as to whether the employer is actually requiring extensive travel or just trying to discourage US workers from applying.
Since PERM is an employer attested process, the review of a submitted PERM application is conducted largely based on what an employer lists on ETA Form 9089. So if an employment opportunity does require travel for all potential workers (US applicants and the alien beneficiary of a PERM) but such a requirement is not listed on ETA Form 9089, the CO has no way of determining the employer’s actual travel requirements. Even if an employer did not list travel requirements on ETA Form 9089 out of error and had no intention of being more demanding of US applicants, a PERM case will be denied if there is found to be a discrepancy in travel requirements.
Travel Listed on ETA Form 9089 but NOT in the Ads
So if travel is deemed a less favorable term of employment for PERM purposes, then what happens when such a requirement is not listed in ads even though it is a requirement for the job? Logically following DOL’s desire to have as many qualified US workers apply for a job as possible, not listing “less favorable terms of employment” in ads, even when it is on ETA Form 9089, might be acceptable. But, this is NOT the case. Recent BALCA cases have shown that when travel is required for a position but not listed in job ads PERM cases may be denied. There are two main reasons for these denials: 1) Advertisements without travel requirements do not accurately inform a US worker where they will need to work; and 2) certain US workers may actually find travel to be something attractive about a job.
The first reason for denial is based on federal regulation which requires PERM advertising to be specific enough in geographic location of job opportunity to apprise applicants of where they will need to live for a job. If travel is a big aspect of a job then US workers will need to understand that in order to decide if a position is an option for them. The language of PERM regulations (20 C.F.R. § 656.17(f)(4)) requires any travel requirement to be listed on advertisements. Travel is not inherently dissuasive, but it must be listed on all forms as well if it is presented to US workers as a requirement.
The second reason for denial seems, at first, to be in conflict with DOL’s view that travel is an “unfavorable” work requirement. If listing required travel in ads will likely discourage qualified US workers from applying, then what is the problem with not listing it even if it actually is a function of the job? According to BALCA, travel requirements may actually ATTRACT certain US applicants to a job offer. So BALCA sees travel in two ways: 1) some US workers will not want to be required to travel; but 2) some US workers will enjoy the idea of not working in only one location.
Example: Company A is headquartered in a small, rather boring town. Company A is filing a PERM petition for a position that requires travel all over the world as part of the job duties. So, if an applicant is hired he/she will spend much less time working in the boring town than if travel wasn’t required. Two qualified US workers, John and Jane, see the ad for the position. John loves his town and does not want to leave, whereas Jane finds it boring. Jane decides to not even apply for the position since she is looking for something to broaden her horizons. John does apply for the position, but only at the interview does he learn of the travel requirement and decide that he does not want the position. Since a travel requirement was not listed in the job ads: one qualified US worker applied without knowing that the job was not what he wanted and another qualified US worker did not apply at all, even though the position may have actually been something she would have enjoyed.
This example highlights BALCA’s insistence on the “good faith” requirement of job postings related to travel.
If an employer lists travel as required only in the ads that US workers see then he/she is giving potential US applicants too much information, perhaps information that will make them decide to not apply at all. But if an employer only lists travel requirements on the ETA Form 9089 then the employer is not giving potential US applicants enough information. In a recent case BALCA summed the situation up perfectly: “[A travel requirement] could dissuade some potential applicants from applying while encouraging others, depending on their desire to travel.” So, despite an older perception that travel requirements are considered “terms less favorable” for employment, BALCA has recently clarified that travel is neither good nor bad in and of itself, but is rather simply required information for all forms and recruitment efforts. The simple lesson: if travel is required (or any major duty for that matter, no matter how unpleasant it may seem) it is safest to put that requirement uniformly across all ads and PERM related forms.
The DOL, both through its COs and through BALCA, is more and more moving toward consistency across all forms related to PERM applications. Employers that file PERM petitions without consistency throughout the process run the risk of meeting a time consuming audit and appeal process, or potentially even denial. It is important to not rely solely on PERM regulations, as the discretionary interpretation of BALCA and CO members may be as important to petitions approvability. If an employer only focuses on running ads that do “not contain duties or requirements less favorable than those offered to the alien” then they may be caught off guard when BALCA/CO decide that what was once considered “less favorable” is not so any longer.
For the reason that attention to plain language regulations may not always be enough to understand proper filing procedures, it is recommended that a petitioning employer contact an experienced immigration attorney. Attorneys with extensive case law knowledge and high success rates with PERM applications will know not only the standards of PERM forms but also the standard for review implemented by DOL officials. Being able to predict potential requests from a CO will result in ensuring that those requests are easily met when an application is filed. Knowing what to expect from adjudicators will mean that an audit, if applicable, will go smoothly and successfully.
(Updated 10/1/2012 by AD)
Code of Federal Regulations: 20 CFR 656.17(f)(3)-(4) and (6)-(7)
Matter of Sun Microsystems, Inc., 2011-PER-00501 (March 29, 2012)
Matter of Pricewaterhouse Coopers, 2011-PER-01303 (May 10, 2012)
Matter of Birlasoft Inc., 2010-PER-01216 (May 11, 2012)
Matter of Diverse Lynx, LLC, 2010-PER-01149 (June 21, 2012)