Employment Prognosis: Work-at-Home Or Abroad
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.