Thank goodness the answer isNO. Green cards are still viable forroving employees and for staffing company employees.
Nevertheless, the rumor that theDOL has “cancelled” the long-standing Farmer Memo has been flying around theinternet. A cancellation of the FarmerMemo could be seen a massive strike against the viability of “roving employee”green cards, which make up the bulk of IT and healthcare staffing company’sgreen cards.
Thankfully, AILAhas confirmed that the rumor is false. The Farmer Memo is still good guidance for PERM green cards. The recent”cancellation” notification of the Farmer Memo that appeared on theDOL website is “simply an administrative system update that does notreflect any policy change.”
The Farmer Memo, which has existedsince 1994, provides the basis for green cards where the employer does not knowwhere the employee will actually work, as is the case for most staffingcompanies. The Farmer Memo instructsstaffing company petitioners to use the employer’s headquarters as the“worksite”. The Memo has been citedby the DOL countless times as good law, notably in Matter of Amsol.
Relevant section of the Farmer Memo
10.LABOR CERTIFICATION APPLICATIONS WHERE ALIENS WILL BE WORKING AT VARIOUSUNANTICIPATED SITES Applications involving job opportunities which require thebeneficiary to work in various locations throughout the U.S. that cannot beanticipated should be filed with the local Employment Service office havingjurisdiction over the area in which the employer’s main or headquarters officeis located.
InItem 7 (address where alien will work) of part A of the Application for AlienEmployment Certification, the employer should indicate that the alien will beworking at various unanticipated locations throughout the U.S. A shortstatement should also be included explaining why it is not possible to predictwhere the work sites will be at the time the application is filed.
No Impact on Schedule A cases
Even if the Farmer Memo had been cancelled,Schedule A cases would not have been impacted. Schedule A cases are green card petitions for Nurses and Physical Therapists. The DOL’s PERM FAQ website still containsthis FAQ (Notice of Filing FAQ #12), which allows roving employeesand provides guidance on how to prepare Schedule A green card petitions.
12. Where must I post a Notice of Filing for apermanent labor certification for roving employees?
If the employerknows where the Schedule A employee will be placed, the employer must post thenotice at that work-site(s) where the employee will perform the work andpublish the notice internally using in-house media–whether electronic orprint–in accordance with the normal internal procedures used by the employerto notify its employees of employment opportunities in the occupation inquestion. The prevailing wage indicated in the notice will be the wageapplicable to the area of intended employment where the worksite is located.
If the employer doesnot know where the Schedule A employee will be placed, the employer must postthe notice at that work-site(s) of all of its current clients, and publish thenotice of filing internally using electronic and print media according to thenormal internal procedures used by the employer to notify its employees ofemployment opportunities in the occupation in question. The prevailing wagewill be derived from the area of the staffing agencies’ headquarters.
If the work-site(s) isunknown and the staffing agency has no clients, the application would be deniedbased on the fact that this circumstance indicates no bona-fide job opportunityexists. The employer cannot establish an actual job opportunity under thiscircumstance. A denial is consistent with established policy in other foreignlabor certification programs where certification is not granted for jobs thatdo not exist at the time of application.