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.

DALLAS, May 5, 2022 – Immigration powerhouse BAL is a finalist for the 2022 SIIA CODiE Award in the Best Legal Solution category for the firm’s proprietary case-management technology, Cobalt^®. CODiE finalists represent the best products, technologies and services in software, information and business technology. Winners will be announced next month.

The 2022 CODiE Award judges called Cobalt a “great solution for a growing problem” and said the software has “very strong and customizable reporting capabilities.”

“We’re honored that the judges have recognized Cobalt and its most recent upgrades that provide peak performance to our business clients and their employees,” said BAL Chief Technology Officer Chanille Juneau. “Cobalt consistently enables us to fulfil our promise of making the immigration journey smoother for clients who depend on our legal teams to submit immigration petitions as flawlessly and efficiently as possible.”

BAL’s proprietary software Cobalt® is a dynamic case management system that offers lightning-speed performance with minimal downtime thanks to our Infrastructure-as-Code (IaC) upgrade and a new proprietary reporting tool, DataPro, that streamlines essential business intelligence for both the firm and our clients.

IaC allows BAL’s products team to code Cobalt’s infrastructure, guaranteeing stability and scalability, while also providing consistency, speed and disaster recovery reliability. Efficiencies gained from IaC enabled our team to create DataPro, a first-in-class tool that provides accurate, fast and customizable reporting functions to help clients keep track of key metrics on their global workforce.

Additional upgrades enable Cobalt to handle millions of user searches and document uploads, essential capacities in the document-heavy practice of corporate immigration law.

“We have invested in developing this technology to best serve our clients’ evolving needs in volume, usability and efficiency,” said Managing Partner Jeremy Fudge. “It’s truly unique in this industry to have an in-house products team working hand-in-hand with our legal teams to solve immigration challenges by creating world-class technological tools.”

The CODiE Awards, the long-running, premier awards program for the software and information industries are produced by the Software & Information Industry Association (SIIA), the principal trade association for the software, education, media and digital content industries. BAL was picked as one of 137 finalists across 43 business categories. CODiE Award winners will be announced during the virtual award celebration on June 8- 9.

Media Contact:

Kasey S. Pipes

817.542.3870

kasey@corleypipes.com

About Berry Appleman & Leiden LLP (BAL)

BAL, the world’s leading corporate immigration law firm, ranks #1 on the Diversity Scorecard by The American Lawyer (2020 and 2021), #1 on Law360’s Diversity Snapshot (2020 and 2021), and the #1 Law Firm for Women according to the National Law Journal (2019, 2020 and 2021). BAL’s Cobalt® digital immigration services platform won the 2020 CODiE Award for Best Legal Tech Product, the prestigious CIO100 award for Innovative Use of Intelligent Automation in Immigration Services, and Legalweek’s Most Innovative Law Firm Operations Team of 2021. 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 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 and Partners, The Legal 500, and Who’s Who Legal. See website for details: https://www.bal.com

Employees Give Firm an A+ on Culture

BAL has won the Best Place to Work accolade for the Dallas Metropolitan Area 2022 by Comparably, one of only 15 companies selected for the honor. The award-winning corporate immigration firm scored an “A+” for culture and ranked seventh on Comparably’s vaunted list.

Comparably also ranked BAL a “Best Company for Diversity” and a “Best Company for Women” for 2021 and a “Best HR Team” for 2022. BAL’s Managing Partner Jeremy Fudge ranked in the top 5% of CEOs of similarly-sized DFW companies.

“This recognition is especially rewarding because it comes from our own employees,” said Jeremy. “They are the ones who deliver world-changing service to our clients, who create our unique culture and make this truly the best place to work.”

The Comparably ranking is based entirely on anonymous employee feedback spanning nearly 20 core culture metrics, giving job-seekers transparent insight into the companies possessing exceptional workplace cultures. Since launching in 2016, Comparably has accumulated 10 million ratings on 60,000 U.S. companies.

“During the extraordinary conditions of the past two years, BAL leadership has focused on what we can do to support our employees—not only their important work for our clients, but their wellness and their professional and personal aspirations,” said COO Leslie C. Rohrbacker. “We’ve intentionally added a strong framework of supports – from unlimited vacation to firm-wide downtime for development and individual pursuits, to affinity groups – and we’re thrilled these programs and benefits are having a positive impact on the lives of our employees.”

BAL has fostered a people-centered culture from its founding. The law firm’s oneBAL philosophy embraces work-sharing across nationwide offices, operating as a single profit center. This spirit of collaboration and support impacts more than BAL’s diverse team – clients benefit from shared expert knowledge across the entire firm.

“At BAL, it’s always been of upmost importance that we lead with care and compassion, while making sure that we carve out time for fun,” said Partner Frieda Garcia. “It’s very special to work at a place where we focus on building each other up instead of competing with each other, so that we enjoy working together as we make a positive difference in the world.” 

About Berry Appleman & Leiden LLP (BAL)

BAL ranks #1 on the Diversity Scorecard by The American Lawyer (2020 and 2021), #1 on Law360’s Diversity Snapshot (2020 and 2021), and the #1 Law Firm for Women according to the National Law Journal (2019, 2020 and 2021). BAL’s Cobalt® digital immigration services platform won the 2020 CODiE Award for Best Legal Tech Product, the prestigious CIO100 award for Innovative Use of Intelligent Automation in Immigration Services, and Legalweek’s Most Innovative Law Firm Operations Team of 2021. 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 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 and Partners, The Legal 500, and Who’s Who Legal. See website for details: https://www.bal.com

After two years of travel restrictions, consulate closures and reduced operating capacity, the U.S. immigration system faces a tough climb to resume full functionality. Although U.S. Citizenship and Immigration Services (USCIS) recently announced that in anticipation of an “exceptionally high” number of employment-based visas available this fiscal year it is committed to “attempting to use all these visa numbers,” green card processing delays continue to dismay employers and foreign nationals alike. Because many unused green cards go to waste at the end of the fiscal year, without further action from USCIS, these delays will unnecessarily deprive tens of thousands of eligible immigrants of permanent legal resident status this year. With record numbers of employment based green card applications waiting in line, any wasted green card causes wait times to increase even further.

To its credit, USCIS has already taken some practical steps to improve green card processing, including waiving interviews for some employment-based green card applicants. The agency also released guidance encouraging employers to transfer eligible applicants to the first- and second-preference employment-based categories where more numbers are available.

However, given the practical realities of processing delays, budgetary shortfalls and the high number of unused green cards last year, combined with ongoing pandemic uncertainty, companies and foreign national employees remain concerned that the government will again fail to issue the full number of green cards by the end of the current fiscal year on September 30, 2022.

As immigration attorneys who formerly served at USCIS, we recognize the operational challenges to efficient green card processing, the impact of green card delays on U.S. businesses and their employees who are waiting in long queues, and the need for further changes. To improve USCIS’s chance to fully utilize available visa numbers, we suggest four actions USCIS should take.

First, USCIS should designate “tiger teams” at each Service Center that would tackle the required number of cases to reach the cap and provide proper supervisory review to ensure the integrity of each case. Originally utilized by NASA to avert disaster on the Apollo 13 mission, tiger teams consist of experienced specialists selected for their experience, energy, and imagination, who will focus on addressing institutional problems and streamlining processes to achieve their goals. USCIS has used tiger teams in the past and should reinstate this approach to create dedicated teams that will relentlessly focus on green card processing hindrances and improve performance.

Second, USCIS should reduce the volume of cases sent to its Field Offices for interview by setting up an effective waiver process for cases posing no eligibility or security concerns. Where USCIS does require interviews, it should conduct them via video whenever appropriate so that any Field Office with capacity can adjudicate the case. This would help avoid scheduling challenges associated with arranging in-person interviews at Field Offices around the country and prevent delays.

Third, the agency should extend the validity of the required medical exam for green card applicants. Last summer, USCIS temporarily extended the validity from two years to four years, but that policy expired Oct. 1, 2021. Re-implementing the longer validity period for medical exams would help alleviate additional delays by reducing the frequency of applicants having to renew their medical examinations.

Finally, USCIS should streamline its handling of case files, both by consolidating related case files early in processing and by increasing digitization efforts. An audit by the DHS Office of the Inspector General identified manual processing as a primary obstacle to USCIS processing speed and recommended USCIS fully digitize its workload. USCIS must accelerate its progress in digitization, electronic filings, and electronic adjudications to improve its processing times across the agency.

USCIS can implement some of these suggestions quickly, while others—such as full digitization—will take years to realize. However, each investment USCIS makes to improve processing speed and reduce green card backlogs will benefit the agency itself, foreign nationals, their employers, and the U.S. economy. One report estimates that wasted green cards reduce U.S. GDP by billions each year. Enabling efficient pursuit of the American dream by improved green card processes not only benefits immigrants, but also aids business productivity, inspires innovation, and provides a needed boost to U.S. economic recovery.

Kelli Duehning is a Partner with Berry Appleman & Leiden LLP. She advises clients on immigration compliance and program strategy. Kelli joined BAL after a 17-year career with USCIS and INS where she headed the agency’s legal strategies in the western U.S.

Steven Plastrik is a Senior Associate with BAL’s Government Strategies team. He advises clients on immigration compliance and H-1B regulations and policies. Steve previously served as Associate Counsel at USCIS’s Vermont Service Center where he advised officers on employment-based nonimmigrant eligibility.

This article was originally published in Law360 on Mar. 28, 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.

DALLAS, March 21, 2022 /PRNewswire/ — BAL Partner Lynden Melmed testified before the Senate Judiciary Subcommittee on Immigration, Citizenship, and Border Safety, in the hearing “Removing Barriers to Legal Migration to Strengthen our Communities and Economy.” Lynden leads BAL’s Government Strategies Team and previously served as Chief Counsel for U.S. Citizenship and Immigration Services.

Lynden’s testimony sounded the alarm that the wait time for employment-based immigrants to get a green card is at a tipping point. “If you ask any company in any industry what the single biggest problem is with the U.S. high-skilled immigration system, you will encounter something rare in the immigration debate: consensus,” Lynden said. “All agree that the lengthy green card backlog is the central problem.”

Pointing to systemic factors contributing to years-long wait times – from outdated manual processing to burdensome policies – he warned that the growing backlog cannot be solved by staffing or resource allocation. Further, he emphasized that improvements to the immigration system would boost the economy, saying, “Expanding legal immigration would increase the pace of economic growth, lower the budget deficit by nearly $3 trillion over 10 years, and boost per capita income by $1,700 over 10 years.”

Lynden stressed the demand for global talent to fill roles in STEM and other fields in order for the U.S. to remain competitive, and noted that the U.S. is losing talent to other countries like Canada that offer a streamlined permanent residency process. He concluded his testimony by offering practical solutions that focus on U.S. competitiveness and job creation. Pointing to proposals such as increasing the number of employment-based visa numbers available to skilled immigrants, recapturing unused green card numbers, and streamlining filing requirements, he urged Congress to take action.

“By doing nothing, the U.S. is going backwards,” he said.

“We’re glad to see Congress’ interest in addressing problems in the U.S. immigration system, and there’s no one better informed on this issue than Lynden,” said BAL Managing Partner Jeremy Fudge. “He and our Government Strategies team are well-connected with key policymakers, advocate for businesses and high-skilled immigration in Washington, and keep our clients and industry leaders informed about anticipated policy changes and how they will impact their businesses. He is the preeminent expert on U.S. immigration policy, and we are hopeful that Congress is persuaded to act.”

Watch the full hearing.
Read Lynden’s testimony.

About Berry Appleman & Leiden LLP (BAL)
BAL, the world’s leading corporate immigration law firm, ranks #1 on the Diversity Scorecard by The American Lawyer (2020 and 2021), #1 on Law360’s Diversity Snapshot (2020 and 2021), and the #1 Law Firm for Women according to the National Law Journal (2019, 2020 and 2021). BAL’s Cobalt® digital immigration services platform won the 2020 CODiE Award for Best Legal Tech Product, the prestigious CIO100 award for Innovative Use of Intelligent Automation in Immigration Services, and Legalweek‘s Most Innovative Law Firm Operations Team of 2021. 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 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 and Partners, The Legal 500, and Who’s Who Legal. See website for details: https://www.bal.com

SOURCE Berry Appleman & Leiden LLP

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