Since its inception, the U.S. has acted as a mecca for a wide

range of job seekers, but in modern times, immigration authorities

have become gatekeepers to protect domestic workers from unfair

competition and reduced salaries.

With current high levels of unemployment in many sectors, it

might seem counterintuitive for employers to request permission for

foreign labor to enter the U.S. job force, but now, more than ever,

there is an urgent need for qualified persons who can contribute to

economic recovery by infusions of skills in short supply,

investments for job creation, and opportunities to train

America's lagging technical workforce.

The World Economic Forum reports that momentous changes are

underway signaling the emergence of new opportunities. One such

change is likely to be the further proliferation of jobs involving

telecommuting. Prior to the Coronavirus pandemic, approximately 25%

of IT jobs were performed at home, but that percentage is now

likely to increase with public acceptance of virtual work and study

experiences.

It has not been well understood that petitions may be filed for

foreign labor to work at their intended U.S. residence or in other

non-traditional workplaces, as long as federal, state, and local

laws are respected and conditions of employment and salary do not

prejudice U.S. workers.

When specific geographic locations are indicated, job duties may

stipulate proximity to specific physical locations in the U.S.,

logically, if there is a nexus between the job and the place – such

as the location of customers or other needs for physical

presence.

The principal address for the job opportunity should be listed

as the corporate headquarters or remote job site, if a commercial

location, provided that the job site has not been chosen on the

basis of unlawful criteria such as lower prevailing wages in that

geographical area. Additionally, when the job is for work-at-home,

the address of the home is not provided; instead, the opportunity

is indicated in H-14 on Form 9089, the space provided for special

requirements.

Despite the fact that work-at-home jobs do not involve travel,

the U.S. Department of Labor (DOL) considers telecommuting to be

potentially restrictive, depending on the perspective of individual

workers, and, therefore, opportunities to work from home must be

included in PERM labor certification recruitment. It stands to

reason that jobs requiring close supervision may not be suitable

for work-at-home, and placement of jobs with third parties is a red

flag as there may be issues of control that undermine the

employer-employee relationship.

Foreign business entities may file applications for temporary

work visas and PERM labor certification applications for employment

in any appropriate U.S. jurisdiction as long as they are properly

domesticated, i.e., registered as a foreign entity under state or

territorial law.

The registration procedure is simple and inexpensive. Employers

should use a business address, even a virtual one, to register with

the Secretary of State in the jurisdiction where they choose to

establish a base of operations, apply for a Federal Employer

Identification Number, and open a bank account. In addition, there

must be a physical location, such as a work area or conference

room, for U.S. workers to report for interviews.

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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