Windsor: Leveling The Playing Field In The Competition For Global Talent, Almost

An Irish lawyer offered a senior-level position at a top United States law firm respectfully declined and instead opted to join a European competitor. In the world of global recruiting, this is not an uncommon tale, with foreign talent often accepting positions with competitor organizations for a plethora of professional reasons. However, in this case, the lawyer was not enticed by what industry insiders would consider the “usual” benefits, such as a better salary and benefit structure, or the opportunity for career advancement. Instead, the lawyer declined the U.S. law firm’s offer because it would mean years of separation from his same-sex spouse. Until recently, this was a common obstacle facing U.S. employers in the competition for global talent.

The Global Center for Equality reported that the United States repeatedly lost key foreign talent because of the unavailability of immigration benefits for same-sex spouses under the restrictions imposed by the Defense of Marriage Act (DOMA). On June 26, 2013, this barrier fell when the Supreme Court invalidated Section 3 of DOMA in United States v. Windsor, making federal benefits available to married same-sex couples. In the wake of the Windsor decision, much of the national celebration focused on the impact on families in the United States, particularly immigration benefits for the foreign national spouses of United States citizens. But the eradication of Section 3 of DOMA also created a key benefit for U.S. businesses seeking to attract global talent: the availability of better immigration benefits for the same-sex spouses of foreign professionals.

Prior to Windsor, Section 3 of DOMA strictly defined marriage in heterosexual terms for all federal purposes. In the immigration context, this meant that a United States citizen or lawful permanent resident could not sponsor a same-sex spouse for any immigration benefit. This also meant that the same-sex spouse of an employer-sponsored foreign professional would not be eligible to join a partner tapped for a U.S. assignment. While the B-2 visitor visa category was a possible option for the spouse of a principal, this visa category was not without risks. In B-2 status, the foreign national spouse would not be approved to stay in the United States for the same length of time as the principal and would have to seek repeated extensions. Each time the spouse’s application would be subject to a full review. In addition, B-2 entrants could not work.

For businesses, DOMA’s restrictions on immigration often meant the loss of highly qualified foreign professionals unwilling to choose a U.S. position over a likely long period of separation from a same-sex spouse. According to the American Council on International Personnel (ACIP), 42 percent of its members reported missing out on at least one recruitment opportunity due to the candidate’s inability to bring a same-sex partner to the United States or to get work authorization for that partner. (ACIP is a U.S.-based association headquartered in Washington, DC that provides worldwide employers with resources and support to advance the employment-based immigration of highly educated professionals.)

Research has consistently proven that organizations with corporate policies fostering tolerance and equality are the most successful in the attraction and retention of professional talent. In a recent article published by Forbes Magazine, the corporate adoption of LGBT-inclusive policies was cited as a key factor in the analysis of overall employee satisfaction and retention. However, even the most inclusive of corporate policies could not overcome the strictures of DOMA, leading many key professionals to seek employment in countries offering marriage equality or, at the very least, same-sex immigration benefits. Consequently, until the Windsor decision, corporations operating in LGBT-inclusive countries had a discrete advantage over the United States and U.S.-based businesses in the acquisition of foreign talent.

Since Windsor, the Department of Homeland Security, the Department of State and the Internal Revenue Service have all issued guidance regarding the availability of benefits for same-sex spouses. This guidance includes the provision that all married same-sex couples are now immediately eligible for the visa benefits available to heterosexual couples. In our firm’s work, we have experienced close up the immediate impact of this historic decision and prompt unambiguous agency guidance. Thus, for the first time, U.S. businesses are able to offer employment-based immigration sponsorship with guaranteed derivative benefits for a same-sex spouse. The international competitive disadvantage has been eliminated.

While these are indeed positive developments, in our view, they do not go far enough. There are still many inconsistencies in the international marketplace regarding how spouses of professional foreign workers – both same-sex and opposite-sex - are treated for purposes of work authorization. Currently, the spouses of foreign professionals eligible for an intracompany transfer (L visa) or treaty trader or treaty investor classification (E visa) are fortunate, as they are eligible for admission in one of the few visa categories that allows for work authorization in the United States. However, for the majority of spouses accompanying foreign professionals to the United States, particularly those with an H-1B visa, work authorization is not an option unless they can be sponsored on their own. These restrictions on work authorization would likely change with comprehensive immigration reform, evinced by the provisions of the recently passed Senate bill that allow employment authorization for spouses in H-4 status. However, in the immediate future, U.S. businesses may still stand to lose key foreign talent because of the unavailability of work authorization for same-sex and opposite-sex spouses.