On November 1, 2021, the Department of Labor (DOL) found that labor shortages resulting from the COVID-19 pandemic do not qualify as a “one-time occurrence” justifying the hiring of H-2B temporary workers.  The H-2B program allows U.S. employers to hire foreign workers to fill temporary non-agricultural positions in the United States. Before hiring an H-2B worker, the employer must file an application with DOL. In particular, the employer must demonstrate that a “temporary” need for foreign workers exists due to: (1) a one-time occurrence; (2) the seasonal nature of the business; (3) a short-term spike in demand (i.e., a peak load); or (4) the intermittent nature of the work.
Continue Reading DOL Finds that Pandemic is not Sufficiently “Temporary” for H-2B Program

What’s the State of Play Today?

  • Low unemployment rates and a shortage of STEM talent continue to drive visa sponsorship of foreign workers by US employers.
  • H-1B visas have a ceiling of six years, unless workers are sponsored by their employers for “green cards” early in the process (typically by year four).
  • Many employers, particularly in the tech arena, are offering foreign workers “green card” sponsorship as of the start date with the company as a recruitment incentive.
  • Companies sponsoring workers for employment-based green cards are required to show as part of the application process that they couldn’t find any qualified American workers to fill the job, a job market testing program known as “PERM” sponsorship.
  • A major technology company agreed on October 19, 2021 to pay a financial penalty of up to $14.25 million, which includes $4.75 million to the US government and up to $9.5 million to eligible victims of alleged discrimination.
  • The government’s suit claimed that the company had illegally reserved jobs for foreign workers it was sponsoring for permanent residence instead of searching for and considering available US workers.
  • The Department of Justice complaint alleged that the company improperly deviated from normal recruiting standards by requiring applications for PERM-sponsored roles to be mailed to the company rather than, as was the standard practice for general recruiting, submitted online.
  • The complaint further alleged that the company did not post these positions on its careers website, as was its standard practice for general recruiting, which appeared to result in very low numbers of US worker applications for the PERM roles.
  • The Department of Labor (DOL) also executed a settlement with the company based on its audit of certain of the company’s pending PERM applications, in which the company agreed to engage in additional notice and recruitment for US workers and as a result of which the company will face ongoing audits by DOL.
  • As part of the settlements, the government will monitor the company’s PERM program for the next three years, and DOL will conduct additional audits of the company’s PERM filings.

Continue Reading Sponsoring Foreign Workers for Green Cards in 2021: Top 10 Issues for Employers to Validate in the Wake of a $14.25 Million Financial Settlement

As reported in our prior alert, the Department of Labor (DOL) has issued its final rule Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.  Published today in the Federal Register, the Final Rule is effective March 15, 2021.  The rule increases wages employers are required to pay H-1B workers by the percentiles we previously reported for the four wage levels utilized by the DOL—35th percentile for Level 1, followed by 53rd, 72nd and 90th percentiles. 
Continue Reading Trump Administration Publishes H-1B DOL Wage Rule

With the filing window for H-1B petitions subject to the annual 65,000 cap fast approaching, employers should take certain steps to prepare for the heightened scrutiny placed on this visa category. The immigration priorities of the Trump administration include reform of the H-1B visa category, which allows US employers to employ foreign professionals in specialty occupations.  While changes by regulation are not imminent, policy and procedural changes can be swiftly introduced without advance notice.  Changes announced in 2017, along with current trends in petition adjudication, provide important lessons for employers seeking to utilize this visa category for their foreign work corps.
Continue Reading Will Your H-1B Cap Petitions Withstand Heightened Scrutiny by USCIS?