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This alert has been provided by the BAL U.S. Practice Group.
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As H-1B cap registrations reached a new high and employers are gearing up to file their cap petitions, the business community should prepare for the recruiting challenges introduced by the registration lottery system and compounded by a competitive job market.
The U.S. unemployment rate reached a 50-year low while job openings hit 11.3 million in January. Without enough domestic workers to fill critical vacancies, companies depend on sponsoring H-1B employees, but a multiple-offer environment has some employers considering whether to sweeten the pot with creative recruitment strategies.
How does the lottery impact recruitment? This was the third cap season in which U.S. Citizenship and Immigration Services (USCIS) used the electronic H-1B registration process, requiring petitioners to enter a simple registration and pay a $10 fee for H-1B candidates. With such a low bar to register and high demand, USCIS received 483,927 registrations this season, 308,613 last year and 274,237 the year before – far exceeding the annual quotas on H-1B visas.
Even with this record number of registrations, USCIS held three lotteries last year and two the year before. Why multiple lotteries? The ability to fill all available H-1B visas—65,000 for the regular cap and 20,000 for the master’s cap—from lottery selections depends on USCIS receiving enough approvable petitions. When all available numbers aren’t used, USCIS conducts another lottery.
With historically low unemployment rates, it is increasingly common for several employers to pursue the same H-1B candidate. Multiple employers may sponsor the same H-1B beneficiary if each registration represents a legitimate business offer. If the foreign worker is fortunate enough to have more than one registration selected on his or her behalf, the sponsoring employers may choose to enhance the terms of their employment – including perks related to immigration sponsorship – to land the employee.
For example, H-1B employees typically want to bring their family members to the U.S., and companies may offer to pay visa fees and provide green card support to an employee’s spouse and children.
Additionally, H-1B employees intend to stay long-term and become U.S. permanent residents, so companies could consider offering green card support and broadening which employees they support if they currently restrict eligibility based on position or tenure. Likewise, the timing of green card support can be an attractive incentive because of chronic green card backlogs and years-long wait times. Employers who provide green card sponsorship on Day 1 might be better situated to woo H-1B employees.
Companies may also offer incentives to make the move to the U.S. easier for H-1B employees and their family, such as cultural integration assistance, local school tours and other services that demonstrate concern for the employee and may have an emotional appeal.
As businesses reboot from COVID, employees are increasingly demanding remote or hybrid work flexibilities. Nearly 20% of all high-paying professional jobs are now permanently remote, and experts predict that number will rise to 25% by the end of the year. With rising housing and gas costs, the economic benefits of remote work may be an attractive offering as well.
While USCIS works to refine its H-1B selection processes, employers must work with the challenges of the current system. That means making competitive offers, and considering other creative incentives to attract global talent.
Delya Ghosh is a Partner in the San Francisco office of Berry Appleman & Leiden LLP (BAL). With a breadth of experience, she serves clients of all sizes in a diverse range of industries, offering strategic counsel on corporate immigration law.
When President Biden took office, I assumed there would be fewer lawsuits against the government’s immigration policies and that, even as a seasoned immigration attorney with a healthy litigation practice, I would spend less time in court. I prepared to shift the bulk of my time to helping my corporate clients with more routine immigration case work.
I was wrong. While the Biden administration has reversed some Trump immigration policies and regulations, in court it continues to defend its authority to restrict certain foreign nationals from the U.S. (i.e., travel bans), it continues to defend the lengthy delays in processing times for work authorization and interviews at U.S. Consulates, and to defend its narrow interpretations of visa eligibility that impede high-skilled immigration.
In the past year, I’ve won several high-profile and important cases against the government, including successfully challenging the State Department’s visa suspension policies and overturning agency interpretation of “specialty occupation” jobs, the primary visa category for high-skilled foreign workers. By challenging the government on issues that are critical to U.S. companies and their economic competitiveness, we achieved significant progress for the U.S. immigration system and for U.S. businesses and thousands of their foreign national employees. For instance, our victory against the visa suspension policy paved the way for the State Department to announce in November that the new rules requiring foreign travelers to be vaccinated to enter the U.S. would not prevent them from applying for or obtaining a visa at a U.S. consulate. In another case, we won a decades-long argument over how the government interpreted the job role of “market research analyst” for purposes of visa eligibility. The win will hopefully broaden eligibility for many “analyst” roles, including computer analysts that most U.S. employers depend on to fill tech jobs.
The Biden administration has appealed many of these recent cases, so employers should not expect the system to become easier to navigate anytime soon. As global mobility resumes and pandemic-related pressure on the immigration system intensifies, litigation can be an important tool in an employer’s arsenal to overcome restrictive policies.
And in this extremely tight labor market with rapid wage inflation, reflecting the continuing workforce crisis and immigration bottlenecks, employers should consider every available legal strategy to challenge immigration policies that are restricting them from filling critical vacancies. Fighting for employees can also give companies a hiring and retention advantage—the Great Resignation is less likely to sweep through workforces with a strong culture of loyalty, and being willing to go to bat for your employees sends a powerful message of support to your workforce.
Understandably, many companies instinctively shy away from litigating against the government, in part because of concerns about reputational risk—after all what business wants to make headlines for suing the United States? However, there are tools to protect a company’s need for discretion while advocating for its employees. Not all cases need to make headlines. In fact, most are resolved with no public attention. And the desire to stay out of the immigration spotlight must be balanced with the need to show employees that the company is fighting for them and their colleagues. Executives want to and need to stand up for their workforce, and asking the government to treat their employees fairly is one way a company can show that they value all employees and will look out for their rights.
While I routinely rely on creative tactics to keep clients out of court—from tapping the insight of my firm’s Government Strategies team in Washington to carefully crafting National Interest Exceptions to facilitate mobility in individual cases—sometimes litigation is necessary. It may become an even more important tool in reforming a broken immigration system as we grapple with the fallout of staffing shortages, pandemic backlogs and Congressional inaction. Employers represented by experienced litigators should not hesitate to challenge unfairly restrictive policies to protect the rights of employees and the financial interests of their businesses.
Jeff Joseph is a Partner in the Denver office of BAL. With more than two decades of experience advising companies on immigration law and policy, he is a well-known immigration advocate and currently serves as Treasurer on the Executive Committee of the American Immigration Lawyers Association and is nationally ranked in Chambers and Partners. He is bilingual in English and Spanish, and has given more than 200 lectures on immigration law.
This article was originally published in the California Business Journal on Feb. 7, 2022.
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.
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.