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Bloggings: July 16, 2008

by Joel Stewart

Editor's note: Here are the latest entries from Joel Stewart's blog.

PERM Determinations Valid for Local Area

During the PERM Workshop in Vancouver, one of the participants suggested that an application could be prepared so as to extend its validity beyond the place of recruitment. Practitioners will remember that prevailing wage and recruitment are linked to a specific area of intended employment. The participant had in mind that by placing language such as "Current location of employment may be moved to another location in the U.S." in box H-14 would "insure" the clients that the labor certification would remain valid even if the job were transferred to another location.

The term Area of Intended Employment is defined in Section 656.3 of the PERM Regulation. It means the area within normal commuting distance of the place (address) of intended employment. According to ETA, there is no rigid measure of distance which constitutes a normal commuting distance or normal commuting area, because there may be widely varying factual circumstances among different areas (e.g., normal commuting distances might be 20, 30, or 50 miles). If the place of intended employment is within a Metropolitan Statistical Area or a Primary Metropolitan Statistical Area (PMSA), any place within the or PMSA is deened to be within normal commuting distance of the place of intended employment. However, not all locations within a Consolidated Metropolitan Statistical Area (CMSA) will be deemed automatically to be within normal commuting distance. The borders of MSA's and PMSA's are not controlling in the identification of the normal commuting area; a location outside of an or PMSA (or a CMSA) may be within normal commuting distance of a location that is inside (e.g., near the border of) the MSA or PMSA (or CMSA). The terminology CMSa's and PMS's are being replaced by the Office of Management and Budget (OMB). However, ETA will continue to recognize the use of these are concepts as well as their replacements.

While the above definition is hopelessly confusing, one may refer to the MSA lists of Metropolitan and Micropolitan Statistical Areas and Definitions. Despite the rather long title, the current list from November 2007 has 154 pages of MSA's defined. For starts, look at the MSAs for New York which brak up the metropolitan area into areas of intended employment. For example, Nassau and Suffolk counties on the Long Island are one area, while the northern sector from Wayne County, NJ, to White Plains, NY, is another. Presumably one would not want to commute from the western most point in Wayne County to the eastern most point in Suffolk. You can find the list at

In 656.30, the PERM rule discusses validity of labor certifications, and the rule specifically states that a certification remains valid only if it continues to be offered within the same area of intended employment, as defined above.

In view of this limitation, a PERM Case cannot be considered valid if the job is moved to another area of employment. A client relying on movability of a PERM case to another "area" would be subject to invalidation at any time in the future. It is likely that the error in location of employment would be identified at the I-140 stage, if the employment were moved during the time between PERM certification and I-140 filing. This is now limited to six months by the regulations.

Some jobs are not subject to a specific area limitation, such as jobs involving roving employees. In such cases, the condition that the job be offered in a specific MSA is not operative, and the rule may be legally obviated by using the address of the main business office of the company, and indicating in the recruitment ads that the job opportunity is not in one, fixed location.