Posting PERM Notices at Empty Offices During WFH

Employer reps only: this alert was only sent to individuals indicated as employer representatives, but will be posted on ILG’s website.

The topic of how to comply with the Notice of Filing (NOF) requirement for PERMs when employees are working from home during the COVID-19 pandemic was covered in an earlier alert, Immigration Compliance During COVID-19. We have new information to share. 

Last week, during a discussion at this year’s AILA (virtual) annual conference, the DOL’s Office of Foreign Labor Certification (OFLC) confirmed that employers can satisfy the NOF requirement by posting the NOF on the exterior door of its building or office suite even if the work place is 100% closed and employees are 100% remote, so long as the business is operational (i.e., conducting business remotely). OFLC also indicated it does not anticipate issuing audits in the future to question the level of occupancy of the office.

Until now, immigration lawyers and employers were left to wonder whether OFLC will deem posting NOFs at empty offices to be deficient, leaving employers with the difficult choice of delaying PERMs or proceeding with some risk that OFLC may scrutinize the NOF posting.

ILG commentary: OFLC indicated it will not be issuing a FAQ on this issue, and as such, the possibility of a future change in policy cannot be ruled out. Therefore, ILG will continue to recommend supplementing NOF postings with a digital posting (during large scale WFH), whether by using the company’s intranet or via email. Although digital posting is not accepted for PERM notices (but is for H-1B notices), it may help if there is scrutiny in the future by showing good faith effort to provide actual notice.