As an experienced Immigration Attorney, I have been drafting PERMs for IT staffing companies for over a decade. However, recently the Department of Labor (DOL) began questioning my travel requirements, despite no changes in the law etc.
In cases where employees work at client locations through an IT staffing company, I typically list the employer’s office location as the primary work site because I cannot predict when the employee will receive their green card or where they will be working at that time. Just because an employee is currently working at an end client in California, for example, doesn’t mean they will be working there when they finally receive their green card. Given the backlog for Indian nationals, predicting future work locations is an impossible task.
If the employer is based out of Irving Texas, as many of our clients are, I conduct all the recruitment there, but also add “various unanticipated locations”. On the prevailing wage request, I also list that the “Position may require travel.” This general language worked perfectly fine for at least 8 years until the Department of Labor started to issue Requests for Further Information (RFIs) questioning whether the travel was domestic or international.
Challenges with DOL RFIs
However, DOL did not issue RFIs consistently, which resulted in some approvals with the original “Position may require travel” language while others received RFIs. To avoid such challenges, I modified my language to “position may require domestic travel.” I thought this would suffice, but the DOL began issuing RFIs asking me to clarify the frequency and nature of the travel. Tough question but this is how I responded:
“The travel requirement is contingent upon project demands and client needs. It is important to note that the specific nature of travel can vary based on individual project requirements”.
Please note that we are filing wage requests for green cards based on future employment. Many of the candidates, including the one in question were born in India. These individuals will likely not receive a green card for at least 15-20 years. Therefore, we cannot determine which client project to assign the individual to, nor can we anticipate the frequency and nature of the travel when filing the prevailing wage.
Previously I have always used the language, “position may require travel,” and then after receiving similar requests like the one in question we switched to “position may require domestic travel.” Apart from these two wage requests for the same company, they have approved all of my wage requests except for one.
I truly believe listing “Position may require domestic travel,” is sufficient and request that you keep this language to maintain consistency with all the other wage determinations issued to this office.”
Client Responses to DOL RFIs
DOL was not impressed. In fact, they refused to issue the wage and told my client so without copying me on the e-mail. Despite the DOL’s refusal to issue the wage in two cases for the same client my other clients received their wage determinations, without issues containing the “Position may require domestic travel” language.
At the time of writing this article another client received two similar RFIs. Luckily greater minds than my own have also received the same RFI and have suggested a way to respond that should hopefully satisfy the DOL.
I responded to both RFIs giving DOL permission to include the following language as part of the prevailing wage determination:
Working at end-client locations may require traveling to various unanticipated locations throughout the U.S. Must be willing to relocate and work anywhere in the US. Clients may require travel in the context of relocation at least once or twice a year.
It remains to be seen whether DOL will accept this language.
Conclusion
As with all things Immigration what frustrates me the most is the fact that none of the agencies involved in the adjudication of Immigration petitions believes in anything nearing consistency. What works for one officer is questioned by another.
Like most things in life, we have to adapt, and my goal is to cause the client the least amount of inconvenience and disruption to what otherwise is an arduous long-drawn-out process.
If you have questions about the above, please e-mail me at cprescott@patellegal.com.