Episode 17: H-1B lottery, summer travel, state and local pay transparency laws

It’s March 30, and this is your BAL Immigration Report.

• USCIS completes the H-1B lottery.
• The State Department prepares for a busy summer travel season.
• State and local pay transparency laws’ impact on the PERM process.

“The unintended consequence of these state pay transparency laws is that employers now have to include some type of pay range or pay scale on these advertisements that they didn’t have to before.”

—Delya Ghosh, BAL Partner

U.S. news

H-1B lottery completed

U.S. Citizenship and Immigration Services has completed the H-1B lottery. The agency has notified registrants of their status via their online accounts. The filing period for selected candidates begins April 1 and is expected to last 90 days. BAL encourages employers to prioritize filing full petitions for time-sensitive candidates such as F-1 students and others whose status may expire soon. USCIS has not yet said how many registrations it received, only that it received enough to reach the annual quotas, including the advanced degree exemption — or “master’s cap.”

Busy summer travel season anticipated

The State Department is preparing for what it says could be the “busiest summer travel season on record.” Officials said the number of passport applications the department has received have outpaced the record set by last year’s volumes by more than 30%. Passport processing times continue to go up. Individuals are recommended to apply at least four to six months before planned travel.

U.S. news roundup

• USCIS ended COVID-related flexibilities for responding to some requests.
• The agency also provided guidance on deadlines when a filing cutoff falls on a weekend or federal holiday.
• The State Department published a new fee schedule that will take effect May 30.

Spotlight

A conversation with BAL Partner Delya Ghosh and BAL Senior Counsel Poonam Gupta: how state and local pay transparency laws are affecting the permanent labor certification, or PERM, process.

BAL Immigration Report: On Jan. 1 of this year, California and Washington became the latest states with laws requiring employers to post salary ranges on job postings. Colorado and New York City have similar measures, and the state of New York will soon follow suit. We asked Delya Ghosh, a partner in BAL’s San Francisco office, about the reasons behind the California law.

Ghosh: In California, the law is called the California Equal Pay Act, and it became effective Jan. 1, 2023. Its primary purpose was for equity in compensation, particularly with respect to gender equity. Its goal was really to make salaries transparent. What the rule says is that, for employers that have 15 or more employees, the employer has to include a pay scale or pay information in job postings.

BAL: While it may not have been the intention, the law has also forced employers to change the way they go about the PERM process. PERM is required for most employment-based green cards.

Ghosh: Generally for PERM, employers are required to place two Sunday print ads and also perform three additional forms of recruitment. Prior to the enactment of these state pay transparency laws, DOL has never required salary information on these advertisements. The unintended consequence of these state pay transparency laws is that employers now have to include some type of pay range or pay scale on these advertisements that they didn’t have to before. Where employers do disclose pay ranges, they may have a range that they use — but for PERM applications, generally when any type of range is used, the bottom of the range must be at least the prevailing wage. So another unintended consequence is that you’re advertising for PERM, and their general advertising may conflict and have different ranges.

BAL: Ghosh says inconsistent pay ranges could lead to employee disgruntlement or even unfair employment practices. Another issue: cost. Poonam Gupta, senior counsel in BAL’s New York City office, explains.

Gupta: Under the Department of Labor regulations, an employer was required to provide notice to its current employees of the salary or the range for these positions that were under the PERM, but they did not have to disclose it to the general public. The New York City law does not require the job description, but the New York state law will require a job description for the role as well, which would mean that the cost of placing these ads will considerably go up for employers.

BAL: Some employers may wait to begin recruitment until they obtain a prevailing wage determination. Currently, this can take anywhere from 8-12 months. Others may choose to post positions without a prevailing wage determination, but this carries risks. If a prevailing wage comes back higher than was anticipated, employers may have to advertise all over again, thus further increasing their costs. One state, Colorado, has exempted PERM postings from its pay transparency law. Gupta says this is not the ideal approach.

Gupta: My biggest concern is that excluding PERM recruitment from the wage transparency laws signals not only to the employers but also to the applicants that this is a PERM role, which goes against the spirit of the PERM process, where you want to be inclusive. Excluding that recruitment and putting a red flag next to that recruitment — “this is a PERM role” — it’s not the right way to go.

BAL: With little guidance, Gupta says employers may have to wait months — until the first PERM applications affected by pay transparency laws are adjudicated — to learn more.

Gupta: We will know what DOL is concerned about, and what documentation will suffice and what documentation will not suffice, what will be the audit triggers, what will be the denial reasons. I mean, DOL has been silent through all the spate of wage transparency laws across the country. And there are a lot more that are coming up — they’re in the pipeline. There is no guidance from DOL whatsoever, and we will learn the hard way unfortunately, like we have previously — we only learn when DOL adjudicates or there is a trend of audits that come through. Based on that, we will learn what the DOL considers sufficient guidance or sufficient documentation.

Global news

Japan introduces new visa pathways

In Japan, the government will introduce new visa pathways in April in an effort to attract highly skilled foreign workers. The J-Skip Visa will be available to foreign engineers, researchers or corporate managers who meet certain work experience, education and income requirements. The visa will be valid for five years and may be extendable indefinitely. Recent foreign graduates from global universities, meanwhile, will be eligible to apply for the J-Find visa, which will allow them to live and work in Japan for two years. The new pathways will be exempt from Japan’s points-based immigration system and were designed to help the country address labor shortages in key industries.

Denmark strengthens recruitment of foreign talent

The Danish government passed legislation intended to attract and retain foreign work talent that will take effect on April 1. The bill allows greater leeway for employers to hire foreign nationals, including opening the Fast-track Scheme to smaller companies and creating a new Supplementary Pay-limit Scheme that lets employers hire foreign workers for up to five years if they meet certain qualifications. Officials also amended the Start-up Scheme to include foreign companies that want to open a new branch in Denmark. Additionally, foreign bachelor’s degree holders will be eligible for a three-year jobseeking permit.

Special measures for Ukrainians in Brazil and Canada

The Brazilian and Canadian governments have extended special immigration measures for Ukrainians in response to Russia’s invasion of the country.

In Brazil, Ukrainian nationals and stateless persons displaced by the ongoing conflict in Ukraine remain eligible for a two-year residence and work permit. New applications can be made at any Brazilian consulate until Dec. 31, 2024, subject to further extensions.

In Canada, Ukrainian nationals and their immediate family members can now live and work or study in the country for up to three years. Ukrainians have until July 15 to apply online for the visa free of charge.

Global news roundup

• The Australian government has expanded the availability of Skilled Work Regional visas to Melbourne applicants.
• Qatar introduced new online work permit and visa services.
• Greece will increase its minimum wage April 1.

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