President Biden has reversed many of the restrictive immigration policies of the past four years, but one issue he has not opposed is increasing the mandatory wage levels U.S. companies would need to pay high-skilled foreign workers under a regulation initiated by the outgoing Trump administration. The Biden administration continues to pursue the regulation, but has given employers more time to plan for the wage increases and an opportunity to provide their input to the Department of Labor.  The regulation would mandate significant wage hikes for entry level H-1B workers and other specialty occupation workers (H-1B1 and E-3), as well as for labor certification, the first step for employment-sponsored immigrants in the green card process. Employers hiring high-skilled workers in these categories must attest to the government that they will pay at least the prevailing wage for the occupation for the intended job location.

The contentious regulation, originally issued on Oct. 8, 2020 introduced dramatic increases to wage levels that took effect the same day they were made public, giving employers no time to plan. Under that version of the rule, companies were required to pay entry-level H-1B workers at least the 45th percentile of the Occupational Employment Survey (OES) wage data distribution, up from the 17th percentile under existing rules. For example, the prevailing wage for an entry-level software developer in New York City would have increased from $78,811 to $116,251 overnight. Further, prevailing wage data was unavailable for numerous occupations and therefore defaulted to a $208,000 prevailing wage, including for entry-level positions.  

Two months after it took effect, a federal court struck down the rule, finding that the DOL violated rulemaking procedures. Days before President Trump left office, however, the agency issued a new version of the rule, also without a public notice-and-comment period, that introduced less dramatic wage increases, a 60-day transition period and gradual phasing-in of the higher wages. Under the current version, employers would be required to pay an entry-level H-1B worker the 31.5th percentile of the OES in the first year and the 35th percentile thereafter—still significant increases. Workers in H-1B status longer than six years who are on track for a green card would gradually phase in to higher wage levels. Employers could use this additional time to adjust to the new wage level distribution or employees could seek a new employer willing to pay at the new prevailing wage level.

The revised rule faces ongoing court challenges, including claims that the rule suffers the same procedural violations that led a court to strike down the original rule, and that its economic analysis relied on faulty data and rescinded executive orders.

However, so far, Biden has not disturbed the content of the rule, but has delayed the start of the higher wage levels by 18 months to allow DOL to review the regulation. Instead of starting this summer on July 1, the first phase of wage hikes is now scheduled to begin on Jan. 1, 2023. Also, this time the DOL is soliciting information from employers and other stakeholders about how it should calculate the prevailing wages. The agency has hinted that it may take additional action based on the information it receives, including potentially issuing a new proposed rule. Companies have until June 1 to provide input about how the wage levels should be calculated and are invited to submit recommendations regarding both the data on which prevailing wage levels are based and the methodology the agency uses to structure wage levels.

Meanwhile, given the substantial investment in recruiting, sponsoring, training and retaining foreign workers, employers should calculate whether they will be able to satisfy the proposed prevailing wage levels as of Jan. 1, 2023 and in subsequent years. Businesses are on notice that the Biden administration is looking to ensure that the wage levels of foreign workers do not disadvantage U.S. workers, and they should prepare for impacts to their foreign workforce—and to their bottom line.

Asha Sairah George is an Associate in the New York office of Berry Appleman & Leiden LLP.

This article was originally 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.

‘Strategic, efficient and very client-oriented.’

DALLAS, May 20, 2021 – Immigration powerhouse Berry Appleman & Leiden LLP (BAL) is once again a top-ranked law firm in the just-released Chambers USA 2021 guide, the prestigious annual ranking of the best law firms in the United States.

Chambers rated BAL a Band 1 firm, calling it a “powerful force” in corporate immigration having “the capacity to handle a range of highly complex matters.” Clients interviewed by the researchers hail BAL for being “extremely hard-working, smart and dedicated to producing excellent work product and excellent results,” and especially strong in “the use of technology to help create scalable solutions.”

This marks the 13^th year in a row that BAL is ranked in Chambers’ California, Texas and USA Nationwide categories. In further recognition of BAL’s excellence, the firm’s New York and Massachusetts practice groups join the esteemed Chambers rankings this year.

“These recognitions reinforce our eminence across regional markets, industry sectors and nationwide,” said BAL Partner Rob Caballero who manages the firm’s Houston, Austin and New York offices. “More importantly, our clients express strong approval of our exceptional capabilities, dedication to service and responsiveness to their needs.”

Chambers praises the “stellar track record” of BAL’s Texas offices, and calls the practice a “strong choice” for multinational companies that benefit from the firm’s international network. BAL’s three offices in California are cited for their “commanding” practice and “high-caliber team of attorneys,” while clients note the practice’s successes in obtaining “very high approval rates” in immigration filings. Chambers cites BAL New York for its “impressive client roster” including major pharmaceutical, financial services and technology clients, and skill in advising on extraordinary ability visas.

Five BAL attorneys are distinguished for their caliber of legal skills, quality of work and attentiveness to clients.

Founder David Berry, based in San Francisco, is ranked as a Senior Statesman for his more than four decades as a recognized leader in immigration law. BAL Managing Partner Jeremy Fudge in BAL’s Dallas headquarters is singled out as an Eminent Practitioner.

“It’s an honor to once again be recognized by this distinguished publication,” Fudge said. “Last year’s unprecedented environment, worldwide lockdowns and travel bans made our services to our clients more critical than ever before, and challenged us to redouble our commitment to helping them through these extraordinary times.”

In a year of policy upheaval, Partner Lynden Melmed, who leads the firm’s Government Strategies team, ranks in both the USA Nationwide category and Washington, D.C. region. Clients call him both “extremely knowledgeable” and “incredibly responsive,” and note his ability to “decipher complex legislative changes” and “devise appropriate strategies to mitigate risks.”

Edward Rios, BAL Partner who manages the firm’s Boston office, and Senior Associate Josiah Curtis, are both ranked in Chambers’ debut Massachusetts rankings. A client sums up their experience with the practice: “I’m blown away by their expert knowledge. They are a walking Wikipedia of immigration knowledge.”

“We are thrilled that Chambers has recognizedour team’s efforts in the New England market and beyond,” said Rios. “It is extremely gratifying to see the positive impact we are making in the immigration field and in people’s lives.”

About Chambers and Partners

Chambers and Partners, covering 185 jurisdictions, has ranked the best lawyers since 1990 and is known for its strength-in-depth editorial and research team. Chambers publishes an annual guide ranking the world’s best lawyers on the basis of technical expertise, business acumen, prompt delivery, and value for the money. A team of more than 170 researchers conducts thousands of interviews worldwide to produce the rankings. Lawyers cannot buy their way into Chambers rankings; as a result, its annual directories are considered among the most accurate and reliable.

About Berry Appleman & Leiden LLP (BAL)

BAL 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, BAL has consistently provided immigration expertise, top-notch information security and leading technology innovation. The firm operates in 11 major U.S. markets and internationally in more than 135 countries through its alliance with Deloitte UK.

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.

With travel disrupted for much of the past year, employees who are U.S. nationals may not have needed to renew their passports. But now that travel is beginning to pick up again, they should be aware of passport processing times and plan well in advance of travel.

Many U.S. passport services were suspended last year due to COVID-19. Passport agencies stopped taking emergency appointments or offering expedited processing, resulting in a wait of several months to obtain a passport. In 2020, 11.7 million U.S. passports were issued, a sharp decline from 20.7 million issued in 2019. Although U.S. passport services have gradually reopened for mail-in service and expedited processing is once again available via mail-in service only, no in-person appointments are available. In addition, emergency appointments are extremely limited and reserved for life-or-death situations, such as needing to travel within 72 hours for a life-saving medical treatment.

Because U.S. passports agencies and consulates overseas are coping with severe backlogs and remain understaffed, applicants should continue to plan for extended delays. As of Oct. 1, 2020, the last time the government provided the figures, 923,000 passport applications remained pending. At this time, routine processing for a passport is taking 10-12 weeks and expedited processing is taking at least 4-6 weeks.

What to expect this year? With COVID-19 lingering into 2021, U.S. passport applicants should anticipate current processing times to remain the same. That said, should we experience new surges or see new variants of COVID-19 continue to emerge, applicants should be prepared for additional actions by the Department of State, which may suspend expedited processing or result in new processing delays.

U.S. nationals should take steps now to prepare for upcoming travel, even if they are not planning to travel for several months. If their passport is set to expire this year, they should renew immediately and not wait for a return to “normal,” as the pandemic remains fluid and continues to threaten normal processing times. Travelers should also check their passport’s expiration date and make sure that it will remain valid beyond their travel. Most countries require an inbound traveler’s passport is valid for at least three months beyond the travel dates; and other countries require six months. Additionally, some airlines do not allow passengers to board if their passport does not meet the validity requirements. Travelers should confirm the individual requirements of the destination country as well as the rules of their airline regarding passport validity.

U.S. citizens residing abroad who plan to travel this year should consider their options as soon as possible. The U.S. Embassy or consulates in their country of residence may be closed or short-staffed; however, U.S. citizens may be able to book an appointment if they are in need of urgent passport support. Often this will require that the U.S. citizen personally reach out to the U.S. Embassy or consulate; requirements and appointment availability may vary by location.

Finally, as the pandemic continues to impact services in unpredictable ways, U.S. nationals and their employers should remain flexible and remember that the availability of U.S. passport services could change with little or no notice.

Jonathan Nagel is a Senior Associate in the Boston, Mass., office of Berry Appleman & Leiden LLP.

This article was originally 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.

Preeminent global ranking guide recognizes BAL’s “deep experience” and “ever-expanding US footprint”

Dallas, February 26, 2021 – Berry Appleman & Leiden LLP (BAL), the world’s leading corporate immigration law firm, is once again a top-ranked firm in the 2021 Chambers and Partners Global Guide. This is the seventh year in a row that Chambers has awarded BAL a place in its prestigious annual ranking.

BAL is ranked a Band 1 firm in the US business immigration category and also ranks highly for its global work. In the individual rankings, Partner Lynden Melmed is once again a Ranked Lawyer, lauded for his work leading the firm’s Government Strategies team in Washington, D.C. Founding Partner David Berry, based in San Francisco, and Managing Partner Jeremy Fudge, in Dallas, are both cited as Notable Practitioners.

Chambers calls the firm an “acclaimed group of immigration specialists attracting praise for its deep experience in corporate global mobility” and notes BAL’s growth and “ever-expanding US footprint.” The ranking highlights BAL’s broad scope of expertise from supporting immigration petitions to program management to strategic advice on compliance and government relations.

BAL’s reach in over 135 countries, its alliance with Deloitte and its “innovative case management technology, proprietary Cobalt^® mobile app and artificial intelligent engines” are specifically highlighted by Chambers. The ranking quotes BAL clients as well: “I’m very impressed with the team as a whole. They are all outstanding counsellors who give us practical advice. They tell us the law, the risks and common practice.” Another impressed client says, “The firm stands out due to its very experienced attorneys, use of technology and pro-activeness in working through complex cases.”

BAL and its leaders rank highly across all major legal publications, and have a sustained presence in the Chambers Guides. BAL Partner Rob Caballero says of the latest ranking: “It’s a privilege to receive yet another recognition by Chambers as a leading firm. This honor acknowledges the firm as an elite group of legal experts, policy insiders, technologists, process engineers and immigration strategists. Each team closely integrates with the others to guide our clients through the ever-changing global immigration landscape, and that’s what this ranking truly represents.”

About Chambers Global

Since 1990, Chambers and Partners has published an annual guide ranking the world’s best lawyers on the basis of technical expertise, business acumen, prompt delivery and value for money. A team of over 200 researchers conducts thousands of interviews worldwide to produce the rankings. Lawyers cannot buy their way into Chambers rankings; as a result, its annual directories are considered among the most accurate and reliable.

About Berry Appleman & Leiden LLP

BAL is one of the world’s most recognized corporate immigration law firms and the Best Lawyers^® Law Firm of the Year in U.S. Immigration Law (2019), the Most Diverse Law Firm in America (2020), the Best Law Firm for Women by the National Law Journal (2019 and 2020) and the #1 Law Firm for Female Attorneys in its category by Law360 (2019 and 2020).

BAL’s Cobalt^® digital immigration services platform earned a 2020 CIO 100 Award, won the 2020 CODiE Award for Best Legal Tech Product, and placed as a 2020 Tech Titans Award finalist. 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, BAL provides immigration expertise, top-notch information security and leading technology innovation. 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. For more information, please visit: https://www.bal.com/.