With the shift to remote work caused by COVID-19, employers of H-1B workers have largely focused on compliance for employees working from home. As offices reopen, some employers are also considering flexible arrangements, such as coworking spaces like WeWork. Office shares may be an attractive option for companies looking to give workers flexibility in returning to an office environment, but they also present compliance concerns. Depending on the circumstances, these flexible arrangements may qualify as a “place of employment” for H-1B workers and trigger compliance obligations. Should employers treat flexible office spaces like a traditional worksite or like a work-from-home arrangement?

In general, before an H-1B worker may begin working at a new or different worksite, the employer must obtain a certified Labor Condition Application (LCA) from the U.S. Department of Labor (DOL) that covers the intended area of employment. Employers must give notice of the LCA by posting required information physically or electronically on or within 30 days before filing with DOL. If the employee changes worksites within the same area of employment, employers must complete posting before the H-1B worker starts at the worksite. The notice is meant to inform affected U.S. workers about the H-1B worker’s employment. While there are limited exceptions to the LCA requirement, regulations and policy guidance largely predate the rise of flexible office spaces and have not been updated to address or exempt them.

Under statute, employers must provide notice to “employees in the occupational classification for which H-1B nonimmigrants are sought.” Regulations from 2000 specify this includes “both employees of the H-1B employer and employees of another person or entity which owns or operates the place of employment.” The preamble to that regulation describes this more broadly: notice must be given to workers in the occupational classification “including employees of a third-party employer.” Guidance from 2019 confirms that DOL applies the more expansive definition from the preamble: notice must be given to “all affected employees” including those employed by a “third-party company.” Whereas the regulation focuses on the H-1B petitioner and the owner or operator of the worksite, the contemporaneous preamble and subsequent DOL guidance broaden that to employees of “a third-party employer,” which would include more than just the owner or operator of the worksite.

For work-from-home arrangements, DOL has stated informally at a meeting with stakeholders that it does not expect H-1B workers to post notices at their homes if they will also be working at an employer’s office location. However, DOL has not issued formal guidance on this, nor has it extended its informal statement to other types of worksites.

The potentially expansive definition of affected workers may create compliance issues for employers placing H-1B workers at flexible office locations. First, an employer may not know whether there are any affected workers at a shared office, such as workers in the same job classification as the H-1B worker who are employed by an unrelated company.

Second, the employer’s existing methods of LCA notification may not effectively reach all affected workers at the shared office space. If a company electronically posts its LCA notices on a company intranet, affected workers at a shared space who work for a different company would not have access to the posting. Similarly, even posting LCA notices electronically on a public website may not be legally sufficient if affected workers at the shared office space are not aware of the notice or are unable to identify which worksite it covers.

Third, the flexible office provider’s policies may prohibit the employer from posting hardcopy notices in a shared office. DOL guidance makes clear that it is the employer’s duty to comply with the notice requirement and that the employer remains liable for failures to do so, even if a third-party (such as the owner of the work location) prevents it from posting physical notices.

DOL should clarify LCA notice obligations for shared office spaces and home offices and should treat them similarly to streamline compliance processes. Requiring employers to notify individuals whose work is wholly unrelated to the employment of an H-1B worker aside from occasionally sharing a rented office space or home office out of convenience does not provide additional meaningful protection for U.S. workers. Meanwhile, employers should consider whether additional compliance processes are needed and work with office share providers to identify the options that work best in their circumstances.

Steven Plastrik is a Senior Associate in the Washington, D.C., office of Berry Appleman & Leiden LLP, and is a member of the firm’s Government Strategies team.

This article was previously published in the California Business Journal.

The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.

A Guide to Protecting Your Global Mobility Program

Enterprise hacks make headlines daily. These include ransomware, malware, adware, social engineering and DDOS attacks. This should give pause to anyone whose business entails managing and securing confidential information. As an in-house mobility professional, your team is likely working both from home and the office, trying to manage the usual robust workflow of cases. Since you are responsible for employee data, you should think about how to best identify and mitigate risk, protecting your company and its people.

If you run a global mobility program, large or small, you need to ensure your employees’ data is protected. Your immigration provider and their case-management software must meet the highest cybersecurity standards.

For these reasons, choosing the right immigration provider is critical for your company and your personal success. But how do you select the right provider and protect your employees?

Learn How to Ask if Your Provider Has Appropriate Cybersecurity Measures in Place

If knowledge gaps make immigration-provider selection challenging, BAL’s new brochure offers reassurance. This guide has been crafted by our legal and IT experts, who have compiled 55 RFP questions to ask potential providers. Reading this guide, you will discover how to ask providers about data security issues, including security governance, security awareness training, incident response, international standards such as ISO/IEC 27001, and third-party audits.

Take steps now to choose the right immigration provider that will protect your critical employee data. Download BAL’s comprehensive guide on immigration case-management security, Enterprise Cybersecurity Is Job Security.


Download the Guide:

To learn more about how you can boost your immigration-program security, please contact cybersecurity@bal.com to schedule a consultation.

Leading immigration law firm leverages automation to enhance client service and business performance 

DALLAS; NEW YORK; SAN FRANCISCO – Berry Appleman & Leiden LLP (BAL), the leading immigration law firm in the world, recently announced it has selected UiPath, the leading enterprise Robotic Process Automation (RPA) platform, to continue its intelligent automation journey. Last year, BAL established its Automation & AI Development Center, which accelerates automation within the business processes that underlie immigration and global mobility. As the firm continues to evolve its use of automation, BAL will apply UiPath’s RPA solution across departments to maximize overall business performance. This will allow BAL to leverage technology to perform certain repetitive manual tasks and allow BAL personnel more time to invest into the customer experience.

As part of its strategic 2020 plan, the firm set out to identify a vendor that could partner with them and enhance their automation applications. After a rigorous research and evaluation process, BAL selected UiPath as their RPA vendor, namely for the company’s unique capabilities in the area of human-bot interaction – a criterion that BAL was particularly focused on to ensure easy onboarding and management of the solution amongst its employee base.

The firm also collaborates with UiPath partner Accelirate, which plays a critical role in the procurement and training process, offering BAL guidance from experienced RPA practitioners. With the help of Accelirate, BAL identified several internal processes to automate with RPA, such as new employee onboarding, managing client requests and streamlining time-intensive administrative and clerical tasks. The firm is also deploying UiPath in conjunction with its Cobalt® global immigration management platform, which includes the industry’s first mobile immigration app and enhances operational excellence and security throughout the global mobility process. By leveraging RPA to help manage these processes, BAL seeks to alleviate the burden of repetitive tasks so both internal and client-facing teams are able to focus on higher value and more customer-focused interactions.  This strengthens the underlying service relationship while also improving operational efficiency.

“With UiPath, we are delivering cognitive capabilities that go well beyond basic RPA areas, such as swivel chair web automation, document processing and form assembly. By adding UiPath to our data, machine learning models and supercomputing power in our Cobalt digital platform, we are in a unique position to continue delivering client service like no other firm,” said Vince DiMascio, CIO of BAL. “Partnering with UiPath’s advanced capabilities maintains BAL’s position as the technology and innovation leader and marks another first in the industry.”

“Delivering exceptional service and insight to our clients means investing in innovation and equipping our legal and operations teams with digital tools and the skills to use them. With UiPath, we increase velocity while creating capacity across our firm, enabling our people to focus on quality, strategy, and expert advice for our clients,” said Edward Rios, a partner at BAL and the firm’s Innovation Leader. “BAL is just the type of innovative organization we are eager to support, and we’re thrilled they’ve adopted our technology to further that innovation,” said Coenraad van der Poel, Head of the Americas at UiPath. “Our platform is meant to help companies focus on what they do best – bringing supreme products to market and delighting customers – and BAL is already doing just that. As the company continues to digitize its business, we expect their results with our solution will only get better.”

About UiPath
UiPath is leading the “Automation First” era – championing one robot for every person, delivering free and open training and collaboration and enabling robots to learn new skills through AI and machine learning. Led by a commitment to bring digital era skills to more than a million people, the company’s enterprise Robotic Process Automation (RPA) platform has already automated millions of repetitive, mind-numbing tasks for business and government organizations all over the world, improving productivity, customer experience and employee job satisfaction. Recently named by Comparably as the 6th happiest place to work and the 11th best company culture among large businesses, UiPath has become one of the fastest growing enterprise software companies in history. The company is backed by over $400 million in funding from Accel, CapitalG, Credo Ventures, Earlybird’s Digital East Fund, IVP, Kleiner Perkins, Madrona, Meritech, Seedcamp and Sequoia.

About Berry Appleman & Leiden LLP
BAL is one of the world’s most recognized corporate immigration law firms, and is the Best Lawyers® “Law Firm of the Year” in Immigration Law in America for 2019. The firm is singularly focused on meeting the immigration challenges of corporate clients around the world in ways that make immigration more strategic and enable clients to be more successful. Established in 1980, the firm provides immigration expertise, top-notch information security and leading technology innovation like its Cobalt® digital immigration services platform. The firm entered into a strategic alliance with Deloitte UK to create the world’s first global immigration service delivery model. BAL and its leaders are highly ranked in every major legal publication, including Best Lawyers, Chambers, The Legal 500, and Who’s Who Legal. See website for details: www.bal.com.

Media Contact:
Emily Albrecht
Senior Director — Marketing & Communications
ealbrecht@bal.com
469-559-0174

All employers who send employees across international borders—whether to engage in business activities, carry out short-term assignments, or for long-term relocation—benefit from having a written immigration policy that covers the legal and practical issues of global travel and international relocation.

A written policy helps compa­nies meet duty-of-care obligations, prevents border issues and detainments, and ensures that employees have the right to work when they arrive in their destination country. Additionally, a policy sets uniform expectations and guidelines to prevent managers and employees from running afoul of local labor laws or other sponsorship requirements. With a written immigration and business travel policy, employees benefit from having clear expectations from the offset and Global Mobility staff can reference uniform policies to inform their management of compliance requirements and other legal obligations.

This backgrounder by Berry Appleman & Leiden LLP (BAL) provides high-level suggestions on key issues related to mobility and immigration that should be part of every global company’s policy manual. With the backgrounder, BAL hopes to encourage Global Mobility professionals to think about how to create a best-in-class internal policy around immigration and international travel that promotes business needs while mitigating the many immigration risks that follow international travel assignments and long-term relocation. Topics covered in the document are described below in brief. For full explanations and key information, download the full BAL backgrounder here.

The new EU ICT Directive offers companies with European operations a strategic route for mobilizing their workforce on short- and long-term assignments. By unifying procedures for multinational companies that are transferring third-country managers, specialists and trainees to affiliated offices, the new Directive alleviates the administrative burdens associated with multiple assignments in several member states. Recognizing that flexible immigration policies contribute to the region’s economic development, the new EU ICT Directive enables greater mobility and flexibility for international businesses wishing to foster the transfer of skills, knowledge, and innovation.

Read the full report here.

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