New Posting Rule for RNs and PTs
February 24, 2006
Unfortunately, some confusion has ensued over the posting notice requirement, which has led to delay, or worse, denials of I-140 petitions for Schedule A occupations.
In response, the US Citizenship and Immigration Services (USCIS) recently issued a memo clarifying the labor application posting notice requirement for employers who have more than one worksite.
The following clarifications are particularly relevant for healthcare staffing companies or healthcare institutions with more than one branch or facility which recruits foreign nurses.
According to the memo, the prevailing wage determination must be based on the principal office of the employer.
If the employer knows where to place the foreign worker, a notice of filing a labor application must be posted at the intended worksite and published according to the usual company procedure for giving notice of job openings to employees.
This means actual posting in an unobstructed area where the employees can readily see the notice, such as bulletin boards at the entrance or other high-traffic areas of the workplace, as well as all in-house media. In-house media includes print and electronic posting in company newsletters or in the company website.
If the employer does not know where to place the worker, the posting of the labor application posting notice must be made in all worksites or “employer client worksites where relevant workers are currently placed.”
This rule applies to medical facilities with branches located separately or staffing agencies that farm out health professionals to its client facilities in various locations. Posting must likewise be made according to normal company procedure and encompasses all in-house company media, whether print or online.
It further clarified that “petitions for unknown worksites where the employer has no locations and no clients will be denied.” In this case, the denial would be based on a finding that no job opportunity actually exists at the time of the application.
Compliance with the labor application notice must be properly documented and submitted in support of the I-140 petition.
A copy of the posting must be submitted along with a certification from the company representative that the posting was made in all in-house media for the required 10-business-day period and further stating a list of all the locations where the posting was made.
The above rules must be observed for: (1) all I-140 petitions filed after March 20, 2006; and (2) I-140 petitions filed and denied after March 28, 2005 (when the PERM took effect) for which a motion to reopen was filed after March 20, 2006.
If by March 20, 2006, the I-140 is still pending or subject to reconsideration and the posting was not made in the proper locations, the USCIS will issue a Request for Further Evidence (RFE) allowing the employer to comply with the posting requirements.
Under the memo, posting will be “considered timely for adjudication purposes” if all posting requirements are met and the notice was posted “the requisite 10 business days prior to the date of the RFE response.”
For I-140 petitions filed before the PERM effectivity on March 28, 2005, the memo instructs adjudicators to issue RFEs that requests the submission of evidence of compliance with the notice requirements.
For pre-PERM cases, the notice must be posted for 10 consecutive calendar days in a conspicuous place at the intended worksite.