The Programme Electronic Review Management (PERM) rule requires that a job's travel requirements be included in newspaper ads. However, the Department of Labour has provided no guidance on the advertising requirements for different kinds of travel, such as that which is often required of high-tech workers. As such, much has been left to speculation and conjecture – in particular, the difference between 'travel' and 'relocation'.
For decades the phrase "travel to various unanticipated locations" has been used to designate travel requirements for roaming IT workers. However, in the past few years the Department of Labour has argued that 'travel' and 'relocation' should be differentiated 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 have complained that the Department of Labour's definition of 'relocation' is vague, and that the sudden distinction between 'travel' and 'relocation' breaks with the longstanding tradition of assimilating all kinds of assignment under the definition of 'travel'.
In a recent case involving a large IT company, the Board of Alien Labour Certification Appeals (BALCA) considered whether an employer should have used the word 'relocation' in its ads. After much controversy, BALCA refused to uphold the Department of Labour's denial of PERM applications for positions involving relocation when only the word 'travel' had been used in the ads, even though the travel might have required the employees to reside in unspecified locations for extended periods.
Having discussed and analysed the conflicting points of view, BALCA agreed with the employer that – in the absence of any clear guidance from the Department of Labour to the contrary – 'travel' and 'relocation' can be taken to mean the same thing.
Although employers may consider this to be a victory, the ruling was limited to the case at hand because it was decided by only three judges, not by the entire court en banc. The Department of Labour can therefore continue to distinguish between travel and relocation and challenge employers in future cases.
Thus, employers should still provide as much detail as possible about travel requirements in their ads, including assignments that involve travel or relocation, geographic destinations (if known) and compensation for long-term relocation expenses.
For further information on this topic please contact Joel Stewart at Fakhoury Law Group PC by telephone (+1 248 643 4900) or email (firstname.lastname@example.org). The Fakhoury Law Group website can be accessed at www.employmentimmigration.com.
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