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Can fully remote U.S. companies sponsor employees for PERM?

By February 5, 2024PERM
Remote company

The PERM process refers to the process by which U.S. employers can sponsor foreign nationals for green cards to work in the U.S.  The PERM process requires the employer to prepare a job description that outlines the minimum requirements for the job, obtain a Prevailing Wage Determination from the Department of Labor and conduct a labor market test to determine if there are any willing, qualified and available U.S. workers for the position.

The PERM process is very heavily regulated and there are aspects of the regulations that can make it more challenging for fully remote companies to sponsor foreign nationals through the PERM process. Some of these challenges are outlined below:

Determining the location for the prevailing wage and labor market test.

The employer is required to define the location of the job in order to obtain the Prevailing Wage and determine where to conduct the labor market test. Prevailing wages are based on U.S. Department of Labor data that is specific to a particular State and County. If it is not clear where the employee will work, or they will work at various unanticipated worksites, the latest guidance from the government is that the company should obtain a prevailing wage and conduct the labor market test using the company’s headquarters as the job location. However, if the company is fully remote it can be more challenging to figure out where the headquarters are located. Companies can look at factors such as which address is used to receive mail for the business, which address is used on company bank statements, and where the company is incorporated to figure out which location they can reasonably use as the company’s headquarters.

Figuring out where to post the Notice of Filing.

Another challenge is related to the requirement that the employer post notice of the PERM filing at the physical location of the employment. The purpose of this requirement is to make sure the other employees working at this location are aware of the job opportunity and can apply for it if interested. Similar to the guidance above, the current recommendation from the government is to post the notice of filing at the company headquarters if the employee will work remotely. However, this requires that the employer have a physical location where they can post the notice. Although some visa types, such as the H1B, allow for an option to provide notice electronically, at this time there is no option for employers to use purely electronic notice when posting the notice of the PERM filing. This can sometimes lead employers to have to engage in the nonsensical practice of obtaining an office space to be used as the company headquarters and then physically posting the notice in an empty office.

It is possible for fully remote companies to sponsor foreign nationals for green cards through the PERM process, but there will be additional strategic challenges and at a minimum the company must have a physical location where they can physically post the notice of the PERM filing.

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