DOL’s OFLC Verifies Regulations that Control PERM Notice of Filing Requirement

During the July 23, 2020, Department of Labor’s (DOL) Open Forum during AILA’s virtual annual conference, the DOL’s Office of Foreign Labor Certification (OFLC) confirmed that the PERM Notice of Filing (NOF) requirement found at 20 CFR 656.10(d)(1)(ii) is flexible and employers can satisfy this regulatory requirement by posting notice for 10 consecutive business days at the worksite.

While there are currently countless different work-from-home and office-closure scenarios, OFLC confirmed that employers could even satisfy the NOF requirement for PERM by posting the NOF on the exterior door of its building, office, or front entry even if the work place is 100% closed and employees are 100% remote, so long as the business is operational (i.e., conducting business). AILA’s DOL Liaison Committee further inquired whether OFLC anticipates in the future issuing audits to question the level of operability of the business or level of occupancy of the building, and OFLC indicated that it does not customarily make this inquiry and does not anticipate doing so in the future. Finally, OFLC will not be issuing a FAQ on this issue as it feels the regulations are flexible and provide for compliant posting even during the COVID-19 pandemic.