DID THE DOL ELIMINATE STAFFING COMPANY GREEN CARDS?

Thank goodness the answer is NO.  Green cards are still viable for roving employees and for staffing company employees.

Nevertheless, the rumor that the DOL has “cancelled” the long-standing Farmer Memo has been flying around the internet.  A cancellation of the Farmer Memo 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’s green cards. 

Thankfully, AILA has 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 the DOL website is “simply an administrative system update that does not reflect any policy change.”

The Farmer Memo, which has existed since 1994, provides the basis for green cards where the employer does not know where the employee will actually work, as is the case for most staffing companies.  The Farmer Memo instructs staffing company petitioners to use the employer’s headquarters as the “worksite”.  The Memo has been cited by 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 VARIOUS UNANTICIPATED SITES Applications involving job opportunities which require the beneficiary to work in various locations throughout the U.S. that cannot be anticipated should be filed with the local Employment Service office having jurisdiction over the area in which the employer's main or headquarters office is located.

In Item 7 (address where alien will work) of part A of the Application for Alien Employment Certification, the employer should indicate that the alien will be working at various unanticipated locations throughout the U.S. A short statement should also be included explaining why it is not possible to predict where 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 contains this FAQ (Notice of Filing FAQ #12), which allows roving employees and provides guidance on how to prepare Schedule A green card petitions.

12. Where must I post a Notice of Filing for a permanent labor certification for roving employees?

If the employer knows where the Schedule A employee will be placed, the employer must post the notice at that work-site(s) where the employee will perform the work and publish the notice internally using in-house media--whether electronic or print--in accordance with the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question. The prevailing wage indicated in the notice will be the wage applicable to the area of intended employment where the worksite is located.

If the employer does not know where the Schedule A employee will be placed, the employer must post the notice at that work-site(s) of all of its current clients, and publish the notice of filing internally using electronic and print media according to the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question. The prevailing wage will be derived from the area of the staffing agencies' headquarters.

If the work-site(s) is unknown and the staffing agency has no clients, the application would be denied based on the fact that this circumstance indicates no bona-fide job opportunity exists. The employer cannot establish an actual job opportunity under this circumstance. A denial is consistent with established policy in other foreign labor certification programs where certification is not granted for jobs that do not exist at the time of application.