High-volume corporate immigration practice presents unique challenges that require a delicate balance of efficiency, scalability and risk management. Multinational companies with a large international workforce strive to establish internal programs to allow for a rapid transition of a workforce. To ensure compliance with immigration laws, the immigration practitioner may be notified at the last juncture, if at all, before the HR decision is made. In addition, clients increasingly apply Six Sigma and other process efficiency standards to the business immigration context, such as timeframes to service level agreements. Given the time-sensitive nature of their business requirements, what strategies may be employed for large multinational corporate clients to meet their immigration compliance needs? This article attempts to address common high-volume practice issues that practitioners may consider in developing a streamlined corporate immigration policy for large corporate employers.
The H-1B classification is one of the most frequently used visa classifications and is also one that affords large employers the opportunity to improve the internal immigration process. Labor Condition Application (LCA) filings involve a notice requirement as set forth under 20 CFR 655. (Insofar as it relates to Labor Condition Applications, the issues would equally apply to E-3s and H-1B1s – though note that additional attestations for employers do not apply to E-3s and H-1B1s.) Large employers stand to benefit by fulfilling the notice requirement through electronic posting as this option avoids the significant administrative work involved in physically posting large volumes of notices. Given that electronic posting consists of sending a single email, which takes a few minutes to send, as opposed to identifying an employee to perform the physical posting, this reduces unnecessary churn that can be replicated en masse for large-volume work. Moreover, electronic posting can be an easier medium to fulfill the notice requirement in case there are any minor location changes within the area of intended employment, as well as being more easily accessible to the workforce.
The employer may also consider taking advantage of “multi-slot” LCAs and wage ranges. So long as the actual wage requirements are met, this option may better accommodate quicker onboarding of key employees. Note, however, that previously filed multi-slot LCAs may fall short of the maximum three-year duration in validity depending on date of certification in relation to the H-1B filing. If the employer can anticipate concrete hiring needs, this option can also protect the employer against possible government shutdowns delaying the DOL's LCA processing. Employers may also consider the option of electronic storage of LCA Public Access Files.
Immigration counsel for large employers should consult with HR and business operations to explore the possibility of obtaining cap-exempt H-1Bs through the "work at" provisions. Employers may have, or be willing to develop, joint ventures with universities, colleges or affiliated nonprofits to provide for greater flexibility, mitigating the impact of annual H-1B numerical limitations. Counsel should communicate the potential risk as USCIS has challenged cap-exempt filings based on the “work at” provision.
Employers may also consider strategic employee transfers for multinational corporations. For qualifying employers, both E and L classifications may be available. Counsel may work with the client to develop a systematic protocol for weighing the benefits against the disadvantages, particularly in light of the high bar on "specialized knowledge" for L-1Bs. Employers eligible for blanket Ls should consider taking full advantage of this program since consular post-adjudications tend to be more consistent than those of USCIS. Counsel should work with the client to consider developing a J-1 or H-3 training program, if appropriate, and also explore E-Verify, which would permit the extended OPT employment authorization of F-1 STEM degree holders.
Counsel should work closely with the client's immigration team to develop a comprehensive permanent residency sponsorship program. Factors in developing a policy for the client include cost, scalability, audit or supervised recruitment rates, and sensitivity level applied in certain individual matters. For example, a particular employer may wish to take advantage of non-PERM solutions if the employer's PERM filings are subject to unusually high audit rates. On the other hand, other employers may take advantage of economies of scale by designing and developing a PERM program involving cutting-edge recruitment programs, such as batch recruitment, rolling recruitment or combinations thereof. Standard job descriptions for common positions may facilitate this effort but also permit Delitizer analysis for those who gained qualifying experience in substantially different roles with the same employer. Employers may wish to consider imposing a tenure requirement before the company will sponsor an employee or only those employees that are likely to stay with the client. In the alternative, employers may wish to offer green card sponsorship upon employment as an incentive to hire talent. Each of these factors should be involved in counsel’s discussion with the client in developing a comprehensive program.
Given a substantial and increasing worker population, counsel should consider setting regular check-ins to review the client's immigration policy. This can also include reviewing and tracking performance levels such as approval, denial and audit rates, as well as processing times and SLAs.
Counsel should also endeavor to continually improve day-to-day logistics with the client. This includes the development of a protocol to bring in global mobility, tax and relocation vendors. This combined effort will offer a smoother transition for the employee population. Depending on the volume of communications with the employee, counsel should consider developing FAQs and blast emails to facilitate efforts to communicate with and educate the foreign national population. Sample FAQs may include departure memos, visa classification memos and memos on permissible activities for Bs and dependents.
While it is a given that we serve our clients in the capacity of legal counsel, high-volume clients require us to strive to deliver the best and most efficient customer experience, and it is in our best interest to employ cutting-edge tools and design an immigration program framework tailored to the client’s business and recruiting needs and challenges.
Published June 3, 2015.
