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Joel Stewart on PERM Labor Certification

Do High Tech Workers Travel or Relocate?

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Everyone agrees that high tech workers are usually on the go, but how often, how long, and how far are open-ended questions that depend on the job.

The PERM Rule requires that travel requirements be included in newspaper ads, but DOL has never provided guidance about advertising for different kinds of travel. Much has been left to speculation and conjecture, especially the difference between travel and relocation.For decades, the usual language used to designate travel requirements for roaming IT workers has been the phrase “travel to various unanticipated locations,” but starting a few years ago, DOL began to argue that travel and relocation should be written separately in newspaper ads -- because “relocation implies a physical move to a new area or location to conduct the work or assignment and is a one-time, expensive event that is more permanent and excessive than travel for short and long term projects.”

Employers reacted by complaining that this definition of relocation was vague and that a sudden distinction between travel and relocation breaks with the long-standing tradition to lump all kinds of assignments together under the aegis of travel.

In a recent case involving a large IT company (Infosys, Ltd., 2016-PER-0074 (May 12, 2016), the Board of Alien Labor Certification Appeals was asked to determine whether the employer should have stated the word “relocation” in its ads. After much controversy, the Board issued its decision, refusing to uphold DOL’s denial of PERM applications for positions involving relocation, when the word “travel” alone had been used in its ads, even though the travel might require residing in unspecified locations for extended periods of time. Having discussed and analyzed the conflicting points of view, BALCA agreed with the employer that, lacking any clear guidance from DOL to the contrary, travel and relocation must be considered to be essentially the same thing.

Although employers may consider this to be a victory, the ruling is limited to this specific case because it was decided by only three judges and not by the entire court en banc. DOL is at liberty to continue to elaborate distinctions between travel and relocation and to challenge employers in future cases.

This is good enough reason why employers should still consider providing as much detail as possible about travel requirements in their ads, including assignments to travel or relocate, geographic destinations if known, and compensation for long term relocation expenses.

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