2021 AILA Conference Day 3 Session 2: Difficulties of Remote Work for PERM

First of all, immediately following this video is going to be the Department of Labor. I don’t know what’s going to happen, but the prediction is that they’ll be talking about all the changes in play. So the difference between this video and the next one is that this video are the AILA attorneys and their strategies on how to deal with the complex issues. The next session will be about what they are proposing to do and also we’ll be talking about how we’re going to respond to that. It’s like a spell, a counter spell, and how to resolve that. Let’s get to it.

[Tsang Intro Splash]

[0:33] Working remotely. That is the biggest elephant in the room that we need to address, and it is extremely complicated, more than you think. So, the trend towards people working remotely has been ongoing, but because of the pandemic, that forced the jump. And that causes severe problems for the Department of Labor because they’re supposed to protect American workers and so if companies are hiring from all across the US and employees can work anywhere, how is the Department of Labor going to protect American workers? And related to that, how do we as immigration lawyers help employers and employees get the job and work legitimately?

[1:15] Here’s an example: If the company is based in Southern California, but the employee could work anywhere and they are working from Idaho, are you going to be advertising for this position in Idaho or in California? And so if the employee is a very high tech engineer and they are working over there, and if you are advertising in Idaho, of course, not that many people in Idaho qualify for this particular high tech job position in California. A lot of employers and immigration attorneys are leveraging this to try to game the system, and that’s not really protecting local Southern California workers. So that is the problem with remote work.

A similar problem: maybe you used to only advertise in local areas of San Diego, but because of this work remote privilege, why don’t you advertise here in Los Angeles or in San Francisco? And if you do, the wage level is going to be a lot higher, and you might not be able to afford to hire the employees that you used to hire. That’s another wrinkle with the whole work remote problem.

[2:22] And there are other complicated issues, such as what if there’s no location for the work site? The employer is in the cloud, there is no headquarters, they work everywhere and so there is no physically location. So where exactly do you advertise? Do you just literally advertise all across the US? The advertising fee is going to be enormous. And so, i’m sure all these questions, clients have, employees, employers are asking their immigration attorneys. What we get from this forum is that all the immigration attorneys we don’t know either because there’s no direct guidance from the Department of Labor. Did you know the only guidance we have on this subject is a 1994 memo by Barbara? That is a long time ago. That is 26 plus years ago. What happened 26 years ago? The first website was created in 1994. Cell phones were not accessible for the majority of people in the world. That is the guiding memo created by Barbara Farmer on how employers and employees should deal with remote work. We desperately need new guidance on this from the Department of Labor. But in the absence of that, we just need to use our common sense, so they say. And what does it mean to use common sense? Because what makes sense for a man might not make sense for a woman, what makes sense for your mom might not make sense at all for you. So what is a common sense practice? And we know it’s really, really uncommon.

[3:50] The example provided is Facebook. If you don’t know about the Facebook lawsuit, basically it’s this in a nutshell: Allegedly, Facebook uses one set of practices to hire foreigners and another set of hiring practices for normal people. So with the foreigners, you’re supposed to prove there’s nobody available for this job, and then you get to hire them. And so in a normal job posting, in a normal hire, there are thousands of applicants that apply. But somehow when they’re recruiting for a position that they want a foreigner to apply for, suddenly there’s nobody who is applying or there are only a few applicants. Basically, the Department of Labor is saying, use your common sense. If you have a different hiring practice and you are hiring exclusively in these channels, and you get no applications, and the wage is somehow super low, how come all the foreigners working at your job in your company get paid 20% lower rate pay compared to everybody else, then there might be a problem.

[4:48] Sidebar: I almost think this is going to be a reverse problem for the normal workplace culture, right? So we’re beginning to see this trend already in corporate America. The more important employees are coming into the office and having remote work privilege. The lesser, second-tier citizens are working fully remote and they don’t get a desk inside the office and so they’re just working from home and using their own facility. And so we’re seeing that. 

But in the case of immigration, it almost seems to be reverse. The foreigners are going to be physically local and they are not going to be remot work and they’re going to be working specifically in those regions so they only have to be advertised in those particular regions and the wage level is only going to be in that specific region. And then everybody else gets to work remote. It’s such an interesting mix between real-life and immigration world. But that’s just my prediction. Who knows these things?

[5:42] The next big topic is about rejections. When is it okay to reject an employee when you try to qualify for this PERM application? So normally you advertise, all these people are applying, and you have to come up with a list of reasons for rejecting every single person. The first thing is salary. Right? So you’re offer the proper wage to this particular employee and this particular employee rejects your offer. Normally, a lot of employers take that and then they give it to the immigration officer and immigration attorney and then we submit it. But that is not okay. When you give an offer, this particular salary and all the benefits, that employee needs to reject your offer because that salary is not enough. That employee needs to specifically reject it because of the salary and not just a blanket rejection. Because you don’t know what they are rejecting for. And so if it’s the salary, they need to specify it and you need to document everything. That is an important takeaway.

[6:42] The next thing is it’s not okay to reject an applicant just because they changed jobs 10 times in the past three years. In a normal situation, it’s perfectly legitimate for an employer to say “Wow, you must have something wrong with you because you have changed jobs 10 times.” But in the world of immigration, that is a no-no.

[7:02] And the third thing is the Facebook example. You should not have two different recruiting procedures – one for foreigners and one for locals. It really should be the same. Try to make them overlap as much as possible. And I know, there’s specific archaic ways that are required by immigration to advertise in a certain way when you’re recruiting foreigners. Take those and do it normally for the normal recruits, and the new advanced ways that you would recruit top talent. Take those and recruit the foreigners as well. Overlap it, right? A nd that way you have one system that you use to recruit top talent. It’s a bit more trouble on both sides, but it’s going to be well worth it.

[7:47] The next thing the panelists talked about are some key updates. So, wage determination was going to go up under Trump, and everybody was really scared for that because normal wages were going to double in some cases. And that was really really scarry. But that has been put on pause. However, you cannot be too relaxed because of the new adjudication process. Because of the hybrid description of your job titles and the location of your work, in effect, basically, the wages have gone up. So let me put this in simpler terms. 

Normally, you describe you position. “Oh it’s going to be this particular position and so please show me what the wage-level will be so I can properly recruit.” Well, they are going to loo at that position and be like “Woah, there’s actually three other positions that are very similar to the job description. We’re going to pick some of the higher ones for you.”

[8:40] Another thing is they’re going to be looking at this position and see “Oh, well this position seems to be able to work in a lot of different locations. So we’re going to pick one from a higher paying location. So now, normally, when you wanted to write this particular position, these type of job duties in this location, they’re going to give you something that’s much, much more expensive and now you have the burden, as the employer, to recruit based off of that wage level, and that’s a bigger expense for the companies. The takeaway all of these panelists want you to know is that it’s getting more and more complicated to do EB2 and EB3 and PERM applications. If a company, a US company wants to hire someone and get them a green card, it takes so much more planning. It is not at all as simple as “Oh, you want to hire this employee. What’s the position? Let me put it together and I file.” It is not that at all.

[9:43] A lot of practitioners, a lot of young attornies, come to our office and want us to mentor them. We do that! We do that for all sorts of cases. And, you know, EB-1A, EB-5. There’s so many things that’s relatively simple. You can put the case together and you can file. We can teach you. We can coach you. But EB-2’s and EB-3’s. These type of cases is so specialized, so complicated that we don’t think it’s possible. And a lot of HR departments, they completely gave up on doing EB-2’s and EB-3’s. But the thing is, there’s still so much good talent overseas and everywhere that US employees just don’t match. And so, with that being said, good planning is very important.

[10:16] In the past, it might have just taken a few phone calls, a couple of meetings to draft up the job duties, to put it together and we can file. But nowadays, it’s so much more complicated than that. We are seeing sometimes it takes three months, six months, multiple meetings by all sectors in the company to talk about what this employee is actually going to do, who the supervisor is going to be, what are the job duties, and which location is the employee is going to be working in so that they can get the green card. There are so many things to strategize to make it happen. It needs to be an all-hands-on-deck to make it smooth because sometimes the waiting time is so long that if you plan it wrong in the beginning, it gets denied a couple of years down the road, and basically it’s all for naught.

[11:00] So, with that being said, if you have an EB-2 or EB-3 case, if you are an employee getting hired by an employer and the HR department, the immigration attorney seems like it’s a mess, please hire a second opinion to do your case. If you are an employer looking to hire an employee and this is your first time or you’ve been doing it, but you’ve been doing it in-house and it’s just so complicated and you don’t want to mess up, please hire an experienced immigration attorney, and they will make it so much easier for you. Do yourself a favor. Save yourself the headache.

[10:33] Hopefully, this YouTube video and this podcast explains all the intricacies. Trust me, there’s a lot of things that are relatively easy in immigration law; this is not one of those. PERM labor certification, EB2, EB3 – it’s not. Even though it’s been here for the longest time, it is not. And it’s for a good reason. The Department of Labor and USCIS wants to protect US workers. They want to make sure that the foreign workers are not being taken advantage of, and they’re making sure that US companies are not trying to abuse the system.

[12:03] And that’s it for this video. Now if you still feel really confused and you still have a lot of questions that’s unanswered, dive into this next video with the Department of Labor Open Forum. That’s where we get to ask our questions to the officers adjudicating these cases. Let’s get to it.