We were recently asked to give a second opinion on an I-140 Notice of Intent to Revoke that was issued because the employer filed the application for labor certification based on the client location. The I-140 was approved in May 2009. Five years later, USCIS has issued a Notice of Intent to Revoke:
This type of revocation could have easily been avoided with proper planning at the labor certification pre-filing stage. A permanent labor certification (PERM) issued by the Department of Labor (DOL) allows an employer to hire a foreign worker to work permanently in the United States. Upon approval of a PERM, the DOL issues a certification that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment. The pre-filing recruitment steps for the PERM process require an employer to advertise the job opening in various media, such as a newspaper of general circulation, State Workforce Agency, campus placement office, etc. For companies in the IT consulting and staffing industry, the area of intended employment for the particular worker being sponsored will likely change throughout the green card process as projects end and new ones begin in various locations across the country. For example, if at the time of filing the application for labor certification the employee is working in California, but the sponsoring company is located in Texas, where is the area of intended employment? When the current position is in California, it may make sense to advertise the job opportunity in California. However, this only works if the job in California is permanent, i.e. the employee will continue at that worksite through the entire green card process. While some such long-term project may exist, it is far more likely that the sponsored employee will eventually move on to a different project in another location. However, when that happens, the labor certification becomes invalid because the employer no longer intends to employ the worker in California. Furthermore, even if the I-140 has already been filed and approved based on that labor certification, it can be revoked.
The purpose of advertising the job opportunity is to test the labor market in the area. If the labor market was tested in California, but the job moves to Ohio, the labor test is invalid. That means the labor certification is invalidated and the I-140 must be revoked for failure to possess a valid labor certification A 1994 policy memo still governs labor certification applications where the worker will be placed at various unanticipated sites:
“Applications involving job opportunities which require the beneficiary to work in various locations throughout the U.S. that cannot be anticipated should be filed with the local Employment Service office having jurisdiction over the area in which the employer's main or headquarters office is located.”
In other words, the test of the labor market, i.e. all advertisements, should be done in the area of the employer’s headquarters, not at the current worksite. Furthermore, the memo instructs that “the employer should indicate that the alien will be working at various unanticipated locations throughout the U.S.” This means that every advertisement must include language indicating various worksites and so must the prevailing wage and actual ETA 9089 form.
In conclusion, if an IT consulting company is advertising at the current work location rather than its headquarters, the company should be prepared to file a new labor certification every time the project changes or risk invalidation of the labor certification and revocation of the I-140 petition. If previous applications have already been filed in this way, it is recommended that preparations be made to begin re-filing the labor certifications based on the company headquarters.
Reddy & Neumann, P.C. is an immigration law firm in Houston, Texas. For over 15 years, our firm has successfully represented corporate clients across the United States in their efforts to bring foreign workers and business professionals to the United States. Reddy & Neumann, P.C. is highly experienced in working with employment-based visas, adjustment of status, green cards, and PERM labor certification. From filing, through approval, and on to appeal, we do everything possible to ensure that your company can bring the best and brightest in the world to the United States.