This is an issue that is related to the PERM process which is the application process to obtain a Labor Certification before the Department of Labor which is required before submitting an application before the immigration service. You can view our discussions regarding the PERM process here and read our PERM FAQ here. This issue may still be open to litigation since it is not always clear whether housing provided by an employer is a typically expected benefit like wages, health insurance and vacation days.
However, the current interpretation by the Department of Labor’s appellate agency which is the Board of Alien Labor Certification Appeals (BALCA), which may be viewed as a rule of thumb is that any unusual economic benefit should be listed in the PERM recruitment. The reasoning is that while not all benefits are required to be listed in recruitment, U.S. workers need to be informed of other benefits that are not considered standard benefits that cannot be readily assumed and that might induce a U.S. worker to apply. Therefore, BALCA sustained the PERM denial which indicated that the option to live on an employer’s premises is a term and condition of employment that creates a more favorable job opportunity to non-U.S. workers and that U.S. workers might have responded to an advertisement if housing was an option.
Do I absolutely need to disclose the housing benefit when I am recruiting for U.S. workers?
It is recommended that you should. However, you may be able to convince the Department of Labor that the benefit is a standard and expected benefit by demonstrating that such a benefit is available to U.S. workers; that the benefit is an industry wide benefit known by anyone who works within the industry and that the employer has U.S. workers currently or historically has had U.S. workers living on premises. However, it is important to note that the Department of Labor will expect evidence to support these positions such as payroll information and address evidence demonstrating U.S. workers living onsite and potentially past job postings from other businesses in the industry providing the same benefits.
Regardless, for the time being there is no guarantee that presenting these factors and circumstances with supporting evidence will be enough to convince the Department of Labor that these are typical industry wide benefits, so the safer bet is to disclose the benefit within the recruiting period process.
