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It’s Jan. 26, and this is your BAL Immigration Report.
“Companies are going to go through a little bit of a jarring transition here, going from historically low audit rates to likely the agency giving everything a closer look.”
—Josiah Curtis, BAL Partner
U.S. Citizenship and Immigration Services is once again bundling H-4 and L-2 applications with concurrently filed H-1B or L-1 applications. These applications were decoupled during the Trump administration, resulting in longer processing times and a lawsuit in 2021. USCIS agreed to adjudicate these applications together as part of the lawsuit’s settlement last week. The terms of the settlement will remain in place for at least two years. While processing times are expected to improve in the long run, the agency is still working through its existing backlog.
The State Department launched the Welcome Corps last week, a new program that allows Americans to privately sponsor refugee arriving through the U.S. Refugee Admissions Program. Private sponsors must form groups of at least five members who work together to raise money to secure housing and provide basic needs for refugees during their first 90 days in the U.S. Welcome Corps aims to mobilize 10,000 Americans as private sponsors for at least 5,000 refugees by the end of this year.
A conversation with BAL Partner Josiah Curtis: PERM audit trends.
BAL Immigration Report: Permanent labor certification, or PERM, is required for most employment-based green cards. In recent months, PERM audit rates have increased severalfold, from historic lows to levels consistent with the historic average. Josiah Curtis, a partner in BAL’s Boston office, joined us to discuss this trend.
Curtis: Anybody who has been paying attention over the course of the last couple of decades sees that the government adjudications trends typically do move with the market. In the PERM context, it’s especially so because the Department of Labor is specifically tasked with the protection of U.S. labor as it relates to the sponsorship of foreign workers, and that takes different approaches depending on whether it’s temporary visas or green cards sponsorship. But in the PERM labor certification process, which is the green card process, it’s an acute focus of the agency to make sure that everything is fair to U.S. laborers and, frankly, that U.S. workers have a leg up in the recruitment process here in the U.S. The macroeconomic conditions when you look at the data typically do impact that in a bunch of different ways — but audit trends, which we’ll talk about here in a little bit, are one of those ways.
Basically, the government just lifts the hood a little bit more when U.S. workers are being adversely impacted at a macroeconomic scale and, as we’re seeing in recent months with wide-scale layoffs in the tech space, the logical reaction of a government agency that’s tasked with the protection of U.S. labor is to look at things a little bit more closely in such a way that drives the lawyers to think about hiring a U.S. worker in place of a potential worker that requires sponsorship. And we know in our practice that talent needs of companies necessitate sponsorship of foreign workers because they need the best and brightest.
But the short answer to your question is, when you look at historical trends, falling out of that Great Recession — or what we’re seeing now is sort of the leading edge of one — it’s pretty common for agency adjudications to evolve based on what’s happening in the market. The inverse of that would be the boom years of the last couple of years, where audit rates were historically low. Companies are going to go through a little bit of a jarring transition here, going from historically low audit rates to likely the agency giving everything a closer look.
BAL: An audit can add several months to the PERM application process — the latest Labor Department data shows that audits are adding about 100 extra days. However, as the number of audits increase and the agency’s review becomes more exacting, the time it takes to complete each individual audit also increases because of the Labor Department’s finite pool of resources. Historically, audits have added several months or even as much as a year to the PERM process. We asked Curtis what types of companies or positions are most likely to be flagged.
Curtis: The agency historically has — this is years and years ago, 10 years ago or so — it has published frameworks for how they think about audit trends and audit rates, and there’s nothing new, there’s nothing recent that we can look to that really gives us a specific listing of what the government thinks about when it comes to who they’re going to audit. But there is, in our own data and just in practice, logical thinking about how the agency might look at these filings — there are some trends that are pretty clearly identified.
So if you’re — from the company standpoint — if you’re a small startup, if you’re a new company, the agency is understandably concerned that you don’t have a long track record of government filings in this space and there is an elevated concern about fraud, where it’s not necessarily something that the agency should look to as the single marker of an application requiring an additional review. But if the company is a year old and you’re sponsoring 15 foreign workers for a PERM, it’s logical that the Department of Labor would want to confirm that the business can sustain that kind of sponsorship and that the recruitment processes are all done appropriately, etc., etc. So small companies, new companies do stand a little bit of an increased risk getting an audit just because the agency might want to verify that the entity itself is legit in the process.
Similarly for the types of foreign nationals that could be at risk — in this context, we’re talking about the positions that are being sponsored, not the individual foreign worker, because in the firm context, it’s about the job, not the person that’s being sponsored. The positions that require very little by way of entry into the role — so a couple of months of experience maybe is required for somebody to fill this role — the Department of Labor when you’re going through the labor market test may audit because they want to see, did you fairly consider U.S. workers who applied? Did you exclude workers unfairly who maybe did have that two, three, six months of experience required for the job? And those aren’t specific metrics — it would be atypical to see a PERM job requiring two months of experience, because not a lot of jobs require two months of experience, but the lower you go in your number of years of experience required, it’s fair and understandable for the government to potentially look at whether U.S. workers who applied to the job were fairly considered, and that’s one of the core pieces of an audit review.
On the flip side of that coin, they’re concerned with fairness to U.S. workers. And if you require a lot of experience — 15 years of experience, for example — for a position that might normally only require five years of experience, the government would say that’s atypical. Is it fair? Do you really have a unique requirement for this job that needs 15 years of experience? Is there a “business necessity” — would be their term of art — for that elevated requirement? And that’s another example of maybe where you might get an audit because the agency understandably is saying that doesn’t seem fair in the context of a labor market test.
BAL: Layoffs can also complicate the PERM process. The PERM application includes a question about whether employers have had layoffs in the “area of intended employment and the occupation involved” in the previous six months. When a company answers yes to this question, employers must take additional steps to ensure that U.S. workers, including those who were laid off, are given a fair shot at the position in question.
Because of the additional work, some employers opt to pause their PERM programs for six months following layoffs. Others face an increased chance of an audit. Curtis outlined some of the steps companies can take to navigate the increased focus from the Department of Labor, whether or not they are going through layoffs.
Curtis: The most important thing you can do in this world, no matter what kind of filing you’re submitting, is manage expectations of the people on the other end. Often, it’s a business constituency that they needed the person yesterday, and then they don’t understand why it takes a year to get through a normal government process. So right out the gate, making sure that you’re engaging with those constituencies to ensure that they’re aware: We anticipate delays, we anticipate additional government inquiry, we anticipate all of these things that are going to kind of gum up the works on the government side — just making sure that stakeholders are aware. So whether that’s a town hall with everybody who’s going through this process, whether that might be some other kind of FAQ support or other communication to people to make sure they’re aware and that they know this is normal would be step one.
The second would be making sure you’re working with immigration counsel to think through some of the things I touched on a moment ago: What are the position requirements? Are they super high? Are they super low? Are they accurate? Obviously, we want to make sure anything we’re filing with the government is accurate. But rethinking your strategy about when to sponsor someone, whether it’s that entry-level role or maybe the next-level role, to mitigate the risk of getting an audit — there again, very facts and circumstances and client specific, no “one size fits all” rule in that context.
Another thing you could do to prepare is audit files have to be maintained for five years from the date of filing of PERM applications. We, as a firm, are very diligent in making sure those are “all i’s are dotted, t’s are crossed” before they’re solved and saved forever, but making sure you’ve got that robust audit file ready to go. You’re only going to have 30 days to respond to the audit when the government issues it, and ensuring that it’s ironclad and you’re just giving it a once-over before you submit it in the context of an audit response is really key.
Lastly, work with immigration counsel to figure out what alternatives might be there. We know the Department of Labor is going to be looking at this stuff. We know that their focus is on ensuring fairness to U.S. laborers — and justifiably and fairly so, things are going to slow down as they issue more and more of these audits. But if there’s a way for you to skip the PERM process altogether and file an EB-1A extraordinary ability application or an outstanding researcher application or a national interest waiver application, it would be important as you navigate these headwinds to think about, are those alternatives applicable to this person, to this role and see if you can’t maybe end around the whole process altogether.
The European Union’s new border control Entry/Exit System, or EES, has been delayed and is now expected to launch in late 2023. The system will automate the entry process for non-EU nationals traveling for short-stay visits, recording each time they cross external Schengen area borders. It will replace passport stamping and requires travelers to have biometric data recorded upon entry. EES is intended to help identify travelers who overstay, who don’t have the right to enter the EU or who are involved in criminal or terrorist activity.
Spain can be added to the growing list of countries offering digital nomad visas. The Spanish government recently approved said visa, which will allow foreign nationals to work remotely for companies or clients located outside the country. The digital nomad visa lasts for one year and offers extensions totaling up to five years. Applicants will need to document their ability to work remotely, provide proof of an existing relationship with a foreign employer or client, and have sufficient financial resources. Spanish authorities are still finalizing details, which are expected to be announced soon.
In Canada, the government launched a two-year program allowing spouses and working-age children of some temporary foreign workers to apply for work permits. The program aims to help address Canadian labor shortages and keep families together. Implementation will come in three phases. Overall, the Canadian government estimates that family members of more than 200,000 foreign workers will be eligible for employment.
Follow us on X, and sign up for daily immigration updates. We’ll be back next week with more news from the world of corporate immigration.
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