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/.

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.

For many U.S. immigrants, achieving lawful permanent residence, commonly known as a “green card,” is a momentous milestone and the final step in their immigration journey.

Some employers assume that these employees are exempt from travel and entry restrictions once they have a valid green card. After all, employers no longer need to file extension petitions or renew visa stamps for these employees. The false perception that green-card holders enjoy unrestricted entry into the U.S. may also have been reinforced by the fact that green-card holders are exempt from many of the recent COVID-19 travel bans.

However, as we near the one-year mark since COVID-19 shuttered borders around the world, employers should revisit the often-forgotten restrictions on green-card holders who remain outside the U.S. for over one year.

Generally, when green-card holders enter the U.S., an immigration officer will determine their intent to reside in the U.S. and confirm the validity of their green card and reentry permit. Green-card holders can document their intent to reside in the U.S. through evidence of close ties in the U.S., such as maintaining a principal U.S. residence, paying taxes, holding a job in the U.S., having bank accounts or owning property in the U.S. Additionally, immigration officers will consider both the length and frequency of trips as factors in deciding if the employee intends to reside in the U.S.

Trips lasting less than a year. Some green-card holders assume that frequent trips abroad for less than six months do not present any red flags. This is not accurate. Immigration officers have the authority and discretion to question a green-card holder’s intent, regardless of the length or frequency of a trip. Additionally, green-card holders will likely experience more scrutiny at the port of entry when the length of the trip is over six months. Although COVID-19 may provide a reasonable explanation for lengthy trips, green-card holders should be prepared for additional questions upon return. All green-card holders must present their unexpired green cards as a valid entry document.

Trips lasting more than one year. Employers and employees should focus on longer absences as the pandemic enters its second year. Green-card holders who leave the U.S. for longer than one year face detrimental consequences: Not only are they presumed to have abandoned their permanent-residence status, the green card becomes invalid for reentry into the U.S. In this scenario, they must apply for and obtain a “returning resident” (SB-1) immigrant visa at the U.S. embassy or consulate, showing that they departed the U.S. with the intent to return and that the extended stay abroad was for reasons beyond their control.

While green-card holders may technically travel directly to the U.S. without applying for a returning-resident visa, this approach is much riskier because the decision to admit the employee is left to the discretion of the immigration officer at the port of entry, both to waive the requirement that the employee show valid documents and to confirm that he or she did not intend to abandon permanent residence status.

Generally, the longer the trip, the more challenging the reentry. If feasible, obtaining a reentry permit before departing the U.S. can help prevent issues. For employees who have been stranded abroad during COVID-19, employers should review entry restrictions for green-card holders and take steps now to avoid unnecessary obstacles for returning employees and to ease their transition back to the U.S.

This article was originally published in the Washington 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.