Posted by Angelo A. Paparelli on September 18, 2011

Off-Message Immigration Bureaucrats Undermine the President's Jobs Push by Refusing L-1 Specialist Visas to Indian Citizens

global workersWith the President's supporters pleading for action, Barack Obama at last has pivoted to jobs.  "Pass this bill [the American Jobs Act]" has become his oft-shouted mantra. Surprisingly, however, career bureaucrats within the Departments of State and Homeland Security apparently haven't read his September 8 speech to Congress and instead are taking affirmative steps to prevent job creation.  Examples of this misbehavior are abundant across all work visa categories, as this blog has shown. 

For the sake of illustration, however, let's get granular and consider the latest trends in visa refusals for a single category, the L-1B  "intracompany transferee" visa, available to workers within a global firm possessing "specialized knowledge."

The problem has become especially acute with the recent flood of L-1B petition and visa denials involving citizens of India, thus raising the concern that the Indian refusals may be founded on unlawful bias, such as citizenship status, national origin, or race discrimination, or, upon the counterintuitive Congressional and media claims that the inbound dispatch of L-1 workers contributes to the claimed offshoring of jobs. 

American businesses count on L-1B workers to design and develop innovative products, fulfill contracts and manage important projects on which U.S. jobs for American workers depend.  With global competition accelerating, a significant delay in granting L-1B visa benefits to a deserving candidate, such as by a consular officer's unexplained return of an approved petition to USCIS for readjudication, a burdensome, boilerplate USCIS request for additional evidence, or an outright denial by either agency -- any one or all of these actions can lead to the loss of American jobs to employees of our competitors abroad.   

For those unfamiliar with this nonimmigrant category, the L-1B intracompany transferee classification, together with the L-1A for executives and managers, has been around since 1970.  The L-1B allows a U.S.-based business to transfer workers from the employ of a foreign affiliate that is under at least 50% common ownership or control with the U.S. petitioner in the combined global enterprise.  The visa applicant must have been employed for at least one year abroad by a foreign affiliate out of the last three years, performing in a job involving specialized knowledge, and must seek to work for a related entity in the U.S. in a like capacity. Individual petitions for L-1B visa classification are submitted to U.S. Citizenship and Immigration Services (USCIS), Regional Service Centers (RSCs), which forwards their petition approvals to a U.S. consulate or embassy abroad where the consul interviews the L-1B visa applicant.  Consular officers also interview "blanket" L-1 visa applicants from larger companies to determine whether either of the alternative definitions of specialized knowledge apply and an L-1B visa should be issued.

A few years back, larger global enterprises could instruct their candidates (specialized-knowledge professionals with a relevant college degree) to apply directly at a U.S. consular post abroad under an approved blanket L-1 petition as long as he or she had gained only six months' worth of specialized knowledge, rather than the one year minimum required now, which in either case is still a comparatively brief period required by statute. 

The term "specialized knowledge" has had a tortuous and tortured history within the legacy immigration agencies.  The trend as late as 1988 had been to interpret the term very strictly, culminating in a case, Matter of Sandoz Crop Protection Corp., which equated specialized knowledge with a level significantly above even "proprietary" or "patented" knowledge:

The petitioner's proprietary interest must be such that the knowledge required is clearly different from that held by others employed in the same or similar occupations. Different procedures are not a proprietary right within this context unless the entire system and philosophy behind the procedures are clearly different from those of other firms, they are relatively complex, and they are protected from disclosure to competition.

A petitioner's ownership of patented products and processes or copyrighted works, in and of itself, does not establish that a particular employee has specialized knowledge. In order to qualify, the beneficiary must be a key person with materially different knowledge and expertise which are critical for performance of the job duties; which are critical to, and relate exclusively to, the petitioner's proprietary interest; and which are protected from disclosure through patent, copyright, or company policy.

Later that year, however, a policy memorandum from legacy Immigration and Naturalization Service (INS), clarified that this interpretation of specialized knowledge was “more restrictive than Congress or the [INS] intended" and instructed adjudicators to apply the new clarification so that the L-1B would be "more flexible and useful to international businesses": 

The problem stems from using a too literal definition of the term "proprietary knowledge" wherein the knowledge must relate exclusively to or be unique to the employer's business operation. Using this narrow interpretation of proprietary knowledge excludes numerous employees of international companies who were intended by Congress to be accommodated under the L classification.

Since the passage of the Immigration Act of 1990 (IMMACT 90), "specialized knowledge" has required (consistently with the 1988 INS clarification) either "special knowledge possessed by [the applicant] of the petitioning organization's product, service, research, equipment, techniques, management, or other interests and its application in international markets," or "an advanced level of knowledge or expertise in the organization's processes and procedures."

In addition, in the preamble to the proposed regulations implementing IMMACT 90, the former INS acknowledged that “the intent of [IMMACT 90] as it relates to the L classification was to broaden its utility for international companies." Two INS Headquarters memos, in 1994 and 2003, and a 1994 State Department cable to the post in Madras (now Chennai), India reaffirmed the IMMACT 90 expansion of L-1B specialized knowledge. The 1994 State Department cable is significant because -- as shown below -- the very same Visa Office and consular post are at the epicenter of unlawful, revisionist and newly restrictive interpretations of specialized knowledge: 

Consuls should satisfy themselves that the applicant possesses knowledge that is not general knowledge held commonly throughout the industry but is truly specialized. The [Visa Office] notes this should not be construed to mean that an individual's expertise must be narrowly held within the company. The fact that the knowledge is held widely within the sending entity does not preclude it from being specialized.

With respect to the issues of remuneration of L-1 employees, there is no requirement (as for H-1Bs) that an individual be paid the prevailing wage. [Consular officers] must be satisfied that the applicant will not become a public charge. Beyond that, it does not appear to [the State Department's Visa Office] that the applicant's compensation may be addressed by [Consular officers].

Nothing of legal substance has changed since the IMMACT 90 Congress legislated an expansive interpretation of the specialized knowledge eligibility criteria, save for rogue (and now off-message) actions to restrict L-1B approvals, especially if the applicant is an Indian citizen. 

The trouble began in earnest with a 2004 Visa Office cable described as "clearly of greatest significance to the Indian Posts," and then with the USCIS Administrative Appeals Office (AAO), which published a 2008 non-precedent case involving an Indian software engineer, followed by USCIS adjudicators at the RSCs who have relied on that case to issue unwarranted L-1B RFEs and petition refusals, and by January, 2011 changes of heart by the State Department's Visa Office (relying on the same AAO case) and the consular posts in India.

More recently, however, the USCIS Office of Public Engagement (OPE), responding commendably to stakeholder concerns, held a May 12, 2011 Listening Session on the L-1B category.  The OPE's notes understate the intensity of complaints voiced during the call: 

An overwhelming majority of stakeholders asserted that the existing regulatory definition of “specialized knowledge” and USCIS policy memoranda which relate to this issue are fine as written, and there is no need to issue any new policy memorandum. Some stakeholders provided feedback indicating that the definition of “specialized knowledge” should be interpreted more broadly than is currently being practiced at the Service Centers. Stakeholders noted that USCIS is interpreting the definition too narrowly as evidenced by the Requests for Evidence (RFE) and denials which are being received by many petitioners for this category. One stakeholder stated that it appears that USCIS has made a change in its interpretation in recent years without any change in the law. . . .

Next Steps

USCIS will provide additional guidance and training to USCIS officers adjudicating L-1B petitions.

If the USCIS has indeed offered "additional guidance and training to USCIS officers adjudicating L-1B petitions," the lessons have not been learned.  Job destruction by way of L-1B denials at the RSCs continues unabated, notwithstanding the President's jobs campaign.  The same can be said of the consular posts in India where, especially since March, employers and immigration lawyers have witnessed a steady increase in unwarranted L-1B refusals. 

Applicants have reported that interviews -- lasting but a few minutes -- are perfunctory, supporting documents are ignored.  Consular officers are prejudging the case (often filling in the L-1B visa refusal notice at the start of the interview), and concluding that any passing reference to a company other than the petitioner warrants the unjustified conclusion that the knowledge must not be specialized. Moreover, notwithstanding the 1994 State Department cable, consuls are asking irrelevant questions about wages paid, while disregarding the value of supplemental stipends for housing, food and travel in the U.S., and ignoring the instruction that specialized knowledge may be held widely within the foreign affiliate ("[the] fact that the knowledge is held widely within the sending entity does not preclude it from being specialized").

The State Department defends its high Indian refusal rate by suggesting that the posts in India receive more L-1B applications and approve more L-1B visas than any other U.S. consulates or embassies worldwide.  Neither State nor USCIS has explained, however, why "specialized knowledge" is simply far more difficult to establish for citizens of India than for nationals of any other country, and why an outdated set of L-1B eligibility standards applies much more to Indians than to other visa applicants.

In the absence of clear answers by State or USCIS to these apparently discriminatory and unlawful practices adversely affecting Indian applicants and their petitioning U.S. employers, the task of revealing the truth and redressing wrongs must turn to another government agency or the media.  Within the federal government, the Department of Homeland Security's Office of Civil Rights and Civil Liberties (OCRCL) is endowed with explicit legal authority to investigate.  All that is required to initiate an OCRCL investigation is for disadvantaged parties to file a well-documented complaint alleging that invidious discrimination has occurred or that the cherished, constitutionally-derived (5th Amendment) civil liberty -- due process of law -- has been violated. 

While some Indian L-1B aspirants may pray to the "Visa God," they and others can also seek and hopefully receive more immediate relief by pursuing the OCRCL's decidedly terrestrial solution. 

Posted by Angelo A. Paparelli on July 24, 2011

Revenue-Raising Immigration: The $$$ Visa

As the debt-ceiling crisis causes America to plunge headlong into the lemming-led abyss of a credit default, Congress and the country are reminded of a timeless truth. "Money is better than poverty, if only for financial reasons."

In these parlous times, our nation is regularly compared to the nearly deadbeat country of Greece, which tried recently but unsuccessfully to sell off some of its sovereign assets. Fortunately for the U.S., however, the sale of our national patrimony is not imminent.  Mount Rushmore, Old Faithful and Lady Liberty are safe, at least for now. Still, America clearly needs more revenue.  With pledge-bound Republicans and Tea Partiers having taken tax increases off the table (except when labeled as immigration user fees), the prospect of near-term levies on the domestic population are virtually nil. 

Money.jpgNot surprisingly, the Senate Judiciary Committee, Subcommittee on Immigration, Refugees and Border Security, will hold a hearing July 26, 2011 on “The Economic Imperative for Enacting Immigration Reform” -- something I've argued in a a slew of blog posts over many years.

Maybe, just possibly, perhaps, cross the fingers, our financial desparation will at last cause a tripartisan immigration consensus to emerge.  Even though comprehensive immigration reform (including a path to lawful status for the undocumented) seems a non-starter at present, one revenue-generating reform to the legal immigration system may be the graspable piece of fruit hanging low to the ground.

As a patriotic American, a 35+ year immigration lawyer and former tax attorney, who has learned a few things about exceptionally affluent foreigners, I offer a royalty-free, open-source concept for the Committee to consider. 

Enter our deus ex machina: A worthy and viable revenue-raising immigration reform -- The $$$ Visa. My proposal for the $$$ Visa is based on fundamental truths about super-rich foreign nationals:

  1. They enjoy and will pay for special privileges;
  2. They don't like unpleasant surprises;
  3. They consider themselves VIPs who deserve red-carpet treatment;
  4. They usually don't want to immigrate because green card status entails U.S. taxation of their worldwide assets and an exit tax for long term residents who later leave America for good;
  5. They create a passel of jobs by hiring minions of lawyers, accountants, financial advisers, chauffuers, interior decorators, designers, stylists, household workers and security personnel who perform for them an array of quotidian tasks (look up family offices here);
  6. They seek safety, security and predictability;
  7. They are fearful of political risks and want to hedge their bets with safe lodging in America as a backup plan;
  8. They have gobs of disposable income; and
  9. They are lured to America by its many enticements.

Rich People.jpgI therefore propose that the $$$ Visa be established as a revenue-raising, jobs-creating vehicle that would permit the ultra-wealthy to help us by helping themselves.  Here are the attributes of the $$$ Visa:

  1. For a nonrefundable filing fee of $1 million made payable to the U.S. Treasury, U.S. consular officers abroad and U.S. Citizenship and Immigration Services (USCIS) officers in the U.S. would grant a qualifying foreign citizen, together with his or her spouse and minor children, a $$$ Visa or corresponding $$$ nonimmigrant status, with the visa valid for up to five years on a multiple-entry basis, and each change or extension of status, and each admission period to the U.S. under the visa, granted in two-year increments.
  2. Neither U.S. consular officers nor USCIS adjudicators would be authorized to delay $$$ Visa issuance by the need to investigate whether the money so paid came from lawful funds. Instead, the Treasury Department under its current "government-wide multisource financial intelligence and analysis network," known as FinCEN, would establish by regulation the procedure to issue a "certificate of financial eligibility (CFE)."  As an inducement to lift the veil on bank secrecy and encourage federal tax compliance, the federal government would make expedited and streamlined CFE issuance available to citizens of countries that have enacted IRS-approved "Know Your Customer" laws (although nationals of other countries could still qualify for the CFE through more routine and likely slower procedures).
  3. A small portion of the revenues generated from the $$$ Visa would be used to establish a red-carpeted VIP lane at U.S. ports of entry.  It's the least we can do to thank them for their contributions to deficit reduction.
  4. All of the usual immigration screening procedures would apply to applicants for the $$$ Visa.  No drug cartel chief, terrorist with money, pedophile or other personae non grata could enter on this visa.
  5. IRS tax residency rules will stay the same and apply to $$$ Visa holders who remain in the U.S. for periods that satisfy the "physical-presence" test.  Thus, $$$ Visa holders who remain in the U.S. for comparatively short periods would still be classified as nonresidents for income tax purposes while those who stay here longer would be taxed as residents and thereby subject their worldwide income to U.S. taxation.
  6. Renewals of $$$ Visas for the same validity period as the original grant would be allowed in the U.S. or abroad at an American consular post for another nonrefundable payment to the U.S. Treasury of $1 million.
  7. The $$$ Visa would provide no path to U.S. citizenship, although such visa holders would still be eligible to attain green card status and to naturalize through other existing legal avenues. Thus, no one could claim that we are selling citizenship.       

Critics would likely charge that we are showing preference to the wealthy and privileged.  Not so.  The U.S. already grants immigration benefits to many individuals of typically modest means, such as battered spouses, victims of human trafficking, asylees, refugees, students on scholarships, lottery winners and a host of temporary workers paid down-to-earth salaries. The $$$ Visa would merely level the polo field. 

After all, America, we can easily entice the ultra-wealthy to come to our country by citing our very own famous quotesmith, Mike Hammer, who said: "There are no pockets in a shroud."  Or, Congress, as the author of the quote at the start of this post reminds us: "Take the money and run!"

Posted by Angelo A. Paparelli on July 10, 2011

Race to the EAD: Revitalizing Depressed American Cities through State Immigration Initiatives

Gratiot near Mack in Detroit.jpgAs economic opportunities appear to diminish in the United States, global mobility management has become the hottest trend in migration. 

In the globalized world, executives, entrepreneurs, investors and talented workers are voting with their feet and moving to places where economic opportunities entice.  (For background, see my recently published article, "Global Mobility Management - A Primer for Chief Legal Officers and HR Executives," co-authored with in-house counsel, Mareza Estevez of Cognizant Technology Solutions, and Peter Schiron, Jr., of Deloitte LLP, available in British and American English.)

One way I follow trends in global mobility is by using Twitter and other social media, gushing fonts of useful information often hidden within torrents of dreck and dross.   (An enlightened writer, Maria Popova, who maintains a website called Brain Pickings, considers the thoughtful filtering of valuable Twitter content as a new form of creative authorship, dubbed "content curation."  I riffed recently with Ted Chiappari on Popova's theme in a curation of our own, a découpage depicting developments in U.S. employer sanctions entitled "Informational Abundance and Scarcity in Immigration Worksite Enforcement.")

Developments in global mobility are seen, for example, in a recent social media thread spotlighting a new amendment, effective shortly, to the immigration laws of the United Arab Emirates.  The UAE will soon allow investors of at least Dh 1 Million (a bit more than U.S.$ 272,000) in real estate to receive residence visas for thee years instead of the current six-month period of stay. The visa change "is expected to help revive the depressed real estate market, which is looking at a huge over-supply in the coming months," according to a local report.  Already, Dubai shares and UAE property values have increased.  The Emirates' real estate investor category will reportedly make life easier for holders of this visa, "such as [when] applying for a local driving [license], [and] personal loans and getting admission to schools."

The new UAE investor visa came to mind as I reflected on two recent business and family trips to Detroit, my hometown, where  I spent my fondly remembered childhood on the gritty streets of its inner city (near Gratiot and Mack Avenues).  Sadly to me, however, my boyhood home of the 1950s-1960s, and virtually all of the structures on the block where I lived (save for a since-erected CVS pharmacy), were long ago demolished.  A city with a population that peaked at about 1.8 million in the 1950s, Detroit last year numbered just over 700,000 inhabitants, and contributed to Michigan's sad distinction as the only state to have "suffered an overall population decline between 2000 and 2010." 

Some in the city are making plans to relocate residents and to group homes together, that is, to "shrink," as the New York Times phrased it in an April, 2011 story.  Others are trying new ways to put the economic mojo back in Motown, as the Wall St. Journal and Forbes reported recently. As a letter writer commenting on the Wall St. Journal piece observed, however:

A city's real strength is its people:  entrepreneurs who can imagine, hard workers who can produce, creative types who can inspire and families who can build. People came to Detroit for one reason: jobs. People will return for the same reason. Figure out how to create these jobs, and the rest will follow.  

Michigan's Republican governor will soon make a major speech in Detroit on "Immigration and Michigan." I have no idea what he will say. Presumably, it will be on "Global Michigan," an effort by the "Michigan Department of Civil Rights and the Michigan Economic Development Corporation to find new ways to encourage more highly educated immigrants . . . to come to Michigan to work and live," beyond merely the "cool factor" luring the adventurous, young and artsy to Detroit.   

If I were ghostwriting his talk, I'd suggest that he urge the Obama Administration to amend existing U.S. Citizenship and Immigration Services regulations to establish a new category of employment authorization (the power to grant work permits inherently rests within the Executive Branch, and numerous administrations before this incumbent have long exercised that authority). 

This initiative could be modeled after the much heralded U.S. Department of Education program, Race to the Top, and dubbed the "Race to the EAD" (Employment Authorization Document).  It would allow states like Michigan to submit economic revitalization proposals under which federally approved projects would allow promising and worthy nonimmigrant and conditional immigrant investors and entrepreneurs as well as state-recommended recipients of deferred action -- after careful screening for security and criminal risks -- to obtain a renewable EAD in reasonable increments (say, two or three years at a time). 

The chosen Race to the EAD projects would be periodically reviewed by government auditors in order to determine the extent to which EAD holders as a group have meaningfully followed through on their commitments and thereby contributed to economic growth, thus entitling them to receive EAD renewals. 

A state whose proposal is federally approved in the Race to the EAD program, as I envision it, would likely be very attractive to foreign citizens because it would not only allow for work permits based on investments and entrepreneurial activities but make life easier for the EAD holder when "applying for a local driving [license], personal loans and . . . admission to schools," much like the UAE property investor category. 

I've blogged before on this topic, but I'm clearly not the first to conceive it.  Financial reporter, Ezra Klein, of the Washington Post was an early espouser as was the State of Utah with its new guest worker program that, to be sure, will require a federal waiver.  Earlier still, the Race to the EAD concept is essentially a modern-day variation on a previous federal inducement to take down roots and prosper through property improvement and investment, America's Homestead Act. 

A more recent precedent also comes to mind.  Despite vehement protests from the right, President Obama took bold steps to save the domestic auto industry, and thereby help a cluster of states, including Michigan, preserve and create numerous jobs. Candidate Romney's non-credible protestations notwithstanding, U.S. auto companies in Michigan and other states are now on the mend and beginning to prosper.  A similar demonstration of executive chutzpah in launching, by regulation, a Race to the EAD program, would likewise spawn a virtuous cycle of rebirth and revitalization in my downtrodden hometown and many other job-starved communities throughout America.   

* * *

[Blogger's note:  The photo above is of the Groeschel Building.  The corner store in the building was a barbershop where I got my hair cut by Joe Messina, a buzz cut in the summer, a bit longer the rest of the year.  Photo source: Detroit: The History and Future of the Motor City, maintained by University of Michigan Sociology Professor, Reynolds Farley.]

Posted by Angelo A. Paparelli on May 14, 2011

Face-off: Foreign Entrepreneurs vs. the Immigration Alligators -- with Obama as Referee

President Obama has put on a good show lately about the need for the populace to rise up and pressure the GOP to enact comprehensive immigration reform.  He urges citizens to begin "a national conversation on immigration reform that builds a bipartisan consensus to fix our broken immigration system so it works for America’s 21st century economy."  With the White House claiming that "he can’t do it alone," he asks you and me to host  roundtables that will "help bring the debate to your community." 

Were it not for the Republicans who keep moving the goal posts on border security, he claimed on May 10 in El Paso, we'd be able, together, to devise the grand solution that fixes our nation's wholly dysfunctional immigration system: 

We have gone above and beyond what was requested by the very Republicans who said they supported broader reform as long as we got serious about enforcement. All the stuff they asked for, we’ve done. But even though we’ve answered these concerns, I’ve got to say I suspect there are still going to be some who are trying to move the goal posts on us one more time. . . . they said we needed to triple the Border Patrol. Or now they’re going to say we need to quadruple the Border Patrol. Or they’ll want a higher fence. Maybe they’ll need a moat. (Laughter.) Maybe they want alligators in the moat. (Laughter.) They’ll never be satisfied. And I understand that. That’s politics.

alligators.jpg

Some may be moved by his crocodile tears to swallow the notion that his hands are tied. I have a few words in response:  Balderdash. Bunkum. Hogwash. Fiddle-faddle.

Either this president is not the analytical, data-gathering, cooly-decisive and valiant leader portrayed by the media, particularly since the takedown of Osama Bid Laden, or, he is playing politics with people's lives and "America’s 21st century economy."  There's no need to repeat previous posts (here, here, here, here, here and there) on his broad executive authority to ameliorate the traumas endured by DREAMers and the other undocumented among us. 

The simple fact, known all too well by immigration insiders but rarely reported, is that President Obama could vastly improve America's competitiveness and stop the flight of foreign talent back to their homelands by reversing or recalibrating several administrative rules or rulings that have long thrown foreign entrepreneurs into the moat with the immigration alligators.  

Here are some things that President Obama could accomplish immediately, solely by executive action, to allow existing America's immigration laws to help create jobs:

  • Restore Self-Sponsorship for Working Owners. Since 2010, U.S. Citizenship and Immigration Services (USCIS) has prevented foreign entrepreneurs from receiving an H-1B visa (for workers in specialty occupations).  The agency took this action notwithstanding four precedent decisions, Matter of Aphrodite Investments Limited (1980), Matter of Tessel (1980), Matter of Allan Gee, Inc. (1979) and Matter of M--  (1958), that allowed a foreign citizen to incorporate a business and use the entity to sponsor the individual's work visa or green card.  The President could easily order USCIS to withdraw the 2010 USCIS memorandum that abruptly strayed from precedent decisions, as the American Immigration Lawyers Association (AILA) has urged. 
  • Restore L-1A Function-Manager Eligibility. The Immigration Act of 1990 (IMMACT) allows managers of essential corporate functions to qualify for an L-1A work visa (for intracompany transferees) and a first preference green card (for multinational managers).  Before IMMACT, only managers of personnel could be granted these benefits.  USCIS routinely denies function-manager requests by claiming that the person does not manage the particular function but primarily performs the function.  This interpretation has rendered the function-manager category a dead letter.  Congress had no need to create the function manager classification in IMMACT if subordinate personnel were to be required to perform the function (so that the function manager could manage it) since a people-manager category already existed. To offer a simple example, a corporate controller under the current USCIS interpretation cannot qualify as a function manager unless the person manages other people -- something that controllers rarely do. The President can easily remedy this mistaken interpretation by instructing USCIS that managers of key corporate components and functions are eligible for function-manager designation even if the individual also performs the function.  This would allow foreign entrepreneurs to create new U.S. businesses and start creating jobs for U.S. workers right away.
  • Restore L-1B Specialized-Knowledge Eligibility. The USCIS Office of Public Outreach got an earful of criticism last week from stakeholders urging the agency to revert to longstanding interpretations of eligibility for an L-1B intracompany transferee visa under the specialized knowledge subcategory. In the teleconference, callers explained that the L-1B had been properly interpreted for decades until 2008 when a non-precedent decision of the USCIS Administrative Appeals Office without warning dramatically restricted its interpretation of L-1B specialized knowledge. Here too, the President could swiftly help foreign entrepreneurs create American jobs by restoring their longstanding ability to send key workers with specialized knowledge to the United States. 
  • Expand Schedule A to include “special-merit” foreign citizens.  The Department of Labor (DOL) under its Schedule A regulation has long allowed persons whose skills are in short supply to avoid the labor market test normally required and obtain an employment-based green card. Schedule A now includes registered nurses, physical therapists and persons of exceptional ability. Back in 2002, AILA asked the DOL but the agency refused to expand Schedule A by allowing "special-merit" foreign citizens to immigrate. AILA made this request because the normal labor market rules deprive a wide array of worthy aliens of any opportunity for PERM labor certification.  Individuals in the unwelcome category include investors, entrepreneurs and working owners, and foreign-born employees who are “so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue in operations without the alien”.  Under orders from the President, the expanded use of Schedule A for these special-merit foreign citizens would allow fair consideration of deserving cases that have had little or no access to labor certification under the current system.
  • Allow the filing (but not the approval) of green card applications before the visa quota is open. Today, because of quota backlogs and an unfair allocation system, a person born in India holding a university degree, whose employer's immigrant visa petition has been approved, may have to wait as much as 20 years before being allowed just to file a green card (adjustment of status) application. The wait is only marginally less for those born in China.  During that time, the person's spouse and working-age children ordinarily cannot work, and the children are at risk of "aging-out" -- reaching age 21 and thus losing green-card eligibility. What's worse, if the foreign worker loses his job in the meantime, the whole immigration sponsorship process (if the family involved has the stomach to pursue it) must go back to square one. As much as America may otherwise be attractive to foreign entrepreneurs and key workers, no sane person would find the risk and limitations of these waiting periods enticing.  In a New York minute, if he were so inclined, President Obama could make the wait more tolerable.  All he'd need to do is instruct USCIS to accept for filing adjustment applications for the beneficiaries of approved immigrant visa petitions and issue a rule freezing the dependent children's age as of the date of filing the green card application.  This way, in the interim until the quota is current, the spouse and working-age children could work or study, and the foreign employee would not be tempted to give up on America, return home and compete against us.

President Obama is no fool.  He understands the link between immigration, innovation and job creation, as he explained to the crowd in El Paso:

[O]ur laws discourage [foreign students educated in the U.S.] from using those skills to start a business or a new industry here in the United States. Instead of training entrepreneurs to stay here, we train them to create jobs for our competition. That makes no sense. In a global marketplace, we need all the talent we can attract, all the talent we can get to stay here to start businesses -- not just to benefit those individuals, but because their contribution will benefit all Americans. 

Look at Intel, look at Google, look at Yahoo, look at eBay. All those great American companies, all the jobs they've created, everything that has helped us take leadership in the high-tech industry, every one of those was founded by, guess who, an immigrant. (Applause.) 

So we don’t want the next Intel or the next Google to be created in China or India. We want those companies and jobs to take root here. (Applause.) Bill Gates gets this. He knows a little something about the high-tech industry. He said, “The United States will find it far more difficult to maintain its competitive edge if it excludes those who are able and willing to help us compete.” 

So immigration is not just the right thing to do. It’s smart for our economy. It’s smart for our economy. (Applause.) And it’s for this reason that businesses all across America are demanding that Washington finally meet its responsibilities to solve the immigration problem.

Why does the President wait for Congress to act when he has his executive pen in his pocket?  Why should immediate job creation be held hostage to Washingtonian impasse, when the job-eating immigration alligators under his control can be easily restrained?  I'm no politico, but it's politics, I suppose.

Posted by Angelo A. Paparelli on May 01, 2011

Hillary's New Arsenal of Immigration Drones

The attention given the Obama Administration's expanded use of aerial drones (of late in Pakistan, Yemen and Libya, at the U.S. border, and perhaps over other points unknown) to bombard unsuspecting targets and predictably, if not wilfully, cause civilian casulaties, may have distracted predator drone.jpgfrom other important meanings of the word.  Webster's Dictionary defines "drone" in four distinct ways:

1 : a stingless male bee (as of the honeybee) that has the role of mating with the queen and does not gather nectar or pollen

2 : one that lives on the labors of others : PARASITE

3 : an unmanned aircraft or ship guided by remote control

4 : DRUDGE . . .

Surprisingly, all four definitions, literally or figuratively, apply to recent action of the Department of State in unleashing a veritable arsenal of consular drones into the immigrationsphere on April 27. The DOS's surreptitious bomb droppings involve a far-reaching final rule issued without the usual forewarning of published notice and the opportunity for public comment as contemplated under the Administrative Procedures Act (APA).  Claiming that the rule is exempt from APA formalities, State (with signoff by Janice Jacobs, Assistant Secretary for Consular Affairs) proclaimed by ipse dixit a regulation expanding the authority of American consular officers to revoke U.S. visas previously issued to foreign citizens.

Typical Paparelli hyperbole, you might say, associating pilotless bombers that kill and maim with a dry rule published in the Federal Register.  Let's see.

Drone%20Bee.jpgVisa officers -- of both genders --- are mated to, and serve and service, the hive that is State (definition 1), although admittedly they are not "stingless," as I'll soon show. Their unwarranted visa refusals and revocations suck out the lifeblood of family unity and entrepreneurship that nourishes this Nation of Immigrants (definition 2). Too often thoughtlessly, they do the bidding of distant masters at State and Homeland Security, and are therefore reliably compliant in a Disney animatronic sense (definition 3).  And their work is unrlenting drudgery, given that State allows them just minutes to decide the destiny of visa applicants, no less decisively than a set of fast-closing subway doors determined the alternative fates of the characters in the 1998 film Sliding Doors (definition 4).

I've railed before, quite often and at length, about the harm to American families and firms caused by the unregulated power of U.S. consular officials to deny visa applications of deserving foreign citizens (to review my prior rants, the curious need only type the words "visa refusals" in the search box to the right). Still, this new drone attack is insidious in several ways:

  1. Whimsy's Silent Death Knell. The final rule allows immigrant and nonimmigrant visa revocations in the consular officer's (potentially whimsical) discretion, whereas the prior regulations (see the IV rule and the NIV rule) made the decision purely one involving straightforward findings, of fact and and under law, that the applicant was not or is no longer eligible for the visa. Presumably, the new regulation supplants State's Foreign Affairs Manual (FAM) provision denying consular officers the "authority to revoke a visa based on a suspected ineligibility, or based on derogatory information that is insufficient to support an ineligibility finding."  Previously, consular officers had no power (only State had the authority) to decide so-called "prudential revocations" which according to the current version of the FAM, "simply reflect that, after visa issuance, information surfaced that has called into question the subject’s continued eligibility for a visa."
  2. Shut My Mouth. The final rule removes any express opportunity for the applicant or his/her attorney to present evidence to confirm that the inividual is legally entitled to keep the visa under immigration law.  Instead, the new rule provides that consular officer "consider . . . information related to whether a visa holder is eligible for the visa." 
  3. No Chance to Scream. Nothing in the final rule requires the consular officer to allow the applicant or counsel to inspect and rebut "derogatory information unknown to the applicant," unlike the USCIS regulation, 8 CFR § Sec. 103.2(b)(16), which grants this customary due process protection.
  4. Shoot First, Ask Questions Later. The final rule creates an illusory "provisional revocation" process that is indistinguishable from an unconditional revocation, namely, the immediate nullification of the visa for use in traveling to the United States. The former regulations required the consular officer, if practicable, to issue a notice of proposed revocation and thereby allowed an opportunity for rebuttal or reconsideration before the actual revocation took place.
  5. Queen Mother Bee, May I? The new rule relieves the consular officer of the duty in several types of cases to seek State's prior permission in the form of an Advisory Opinion.  Now a consular officer, without hesitation or consent, can uncap and click the visa revocation button and fire off a drone.  
  6. 'Tain't Fair. Consular officers now have authority under the final rule to revoke a visa even if the visa holder is already in the United States -- an action that heretofore only State could do under the present version of the FAM. Under Immigration and Nationality Act § 221(i), a consular revocation cannot be reviewed by any court except in limited circumstances during a removal (deportation) hearing. Thus, a consular decision, perhap made on incorrect information and without notice to the visa holder or a rebuttal opportunity, transforms an otherwise law-abiding foreign citizen into a deportable alien whose only remedies are to be hauled before an immigration judge or hop on the first flight back home.

Even before State's fait accompli drone attack, the DOS recognized and forewarned consular officers to "be alert to the political [and] public relations . . . consequences that can follow a visa revocation," noting in the FAM that the "revocation of the visa of a public official or prominent local or international person can have immediate and long-term repercussions on our political relationships with foreign powers and on our public diplomacy goals in a foreign state." Apparently, visa revocations involving lesser known foreign figures are of inconsequential concern to the Department.

I'll end my droning with a suggestion to State: 

Superman.jpgIf you care about our nation's image in the world and the soft skills of diplomacy, as you oft proclaim, withdraw this silly and pernicious rule. Contrary to your bald assertions in the preface to the rule, your release of immigration drones will inevitably trigger "adverse effects on competition, employment, investment, productivity, innovation, [and] the ability of United States-based companies to compete with foreign based companies in domestic and import markets."  Your rule also raises the prospect that families of "little people" -- to snatch a phrase from the "Queen [Bee] of Mean," Leona Helmsley -- will be torn apart by your improvidently released drone attack on fair play and simple justice. 

With your actions as added martial fodder, is it any wonder that Superman is renouncing his U.S. citizenship because he cannot in good conscience continue to link truth and justice to the American way?     

Posted by Angelo A. Paparelli on March 20, 2011

America's Creaking, Crotchety Immigration System -- Not Ready for the Globalized World

Few observers predicted the profundity of global political changes in the first quarter of 2011.  

The Middle East, still the source of most of the world's energy, has witnessed civilian protestors toppling despots and prompting autocrats to invite foreign-state and mercenary armies to quell peaceful demonstrations and slaughter citizens. Libya's never-predictable Muammar el-Qaddafi, having nearly routed indigenous rebels centered around Benghazi, faces a UN-authorized no-fly zone and aerial attacks mounted at the behest of the Arab League, an organization now critical of air assaults that may provoke a full-blown war.      

Japan, no longer the world's second largest economy, is shaken by a 9.0 earthquake and tsunami that caused the deaths of probably 10,000 or more citizens and devastated the northeastern countryside. The resulting radiation fallout from severely damaged nuclear plants now contaminates the food supply and threatens public health. The devastation has also rocked the nuclear energy industry and called into question whether fission power will replace fossil fuels anytime soon.

With these events capturing public attention, President Obama is in Brazil, the worlds seventh-largest economy, the global leader in sustainable bio-fuels and ninth-largest oil producer with huge off-shore reserves.  The President hopes to return home with business deals that produce American jobs and secure access to less volatile sources of energy.  Whether or not he succeeds on this trip, he could not have failed to hear the sharp criticism leveled against American policy by Brazil's President, Dilma Rousseff, who chided the U.S. for its past "empty rhetoric."  As The New York Times reported, a "deeper relationship [with Brazil]," she said, must "be a construct amongst equals."

The two presidents failed, however, to reach an agreement that would allow Brazilians to enter the U.S. as business visitors or tourists under the Visa Waiver Permanent Program. Nor did President Obama endorse Brazil's call for a permanent seat on the UN Security Council, although on his state visit to India -- according to the NYT -- he "lent support to that country’s hopes for a permanent seat."

In this world of ever-erupting turbulence, a functioning immigration system would serve to promote America's foreign policy and economic interests, while honoring its tradition as a nation hospitable to hard-working immigrants.  Beyond securing the border against terrorists, criminals and ne'er-do-wells, an efficient and effectual immigration system would encourage investment, innovation and job-creation.  It would provide orderly systems for family reunification and refuge for the persecuted.  It would also bear marks of humility and wisdom, recognizing that our diversity is our greatest strength and that our actions abroad often stoke the push factors propelling and compelling people to breach our borders.

The present immigration system in the U.S. merely pays lip service to these objectives while suffering from malign neglect and willful meanspiritedness. Despite a 1986 federal law prohibiting employers from hiring workers whom they know or should know lack the legal right to work, the agencies charged with enforcement have yet to agree on the definition of "employment." Notwithstanding a 1996 law punishing illegal overstays, these same agencies continue to split hairs over the distinction between violation of nonimmigrant "status" and "unlawful presence," have yet to publish a rule defining what it even means to "maintain [legal] status," and still assert that a foreign citizen can be work-authorized yet have no immigration status. 

Most of us in this nation of immigrators bewail the system but do little to insist on adult conversations among lawmakers that might lead to pragmatic and humane solutions. In a time of focus on deficit reduction, we want more border security but would never tolerate a tax increase to pay for it.

Yet the candle-lighters among us, who'd rather not just curse the darkness, see a few glimmers, of luminosity. 

Business leaders in Utah, Colorado, Nebraska, Florida, Kansas, Oklahoma and, yes, even Arizona, have beaten back efforts to make state immigration laws still more draconian.  A leading labor union blasts the Administration's senseless and expensive immigration enforcement policy, while the Organization of American States faults us for inhumane immigrant detention practices.  A Tea Party leader -- Dick Armey -- says that if necessary to care for his babies he would break the law, ironically, on essentially the same grounds that spur unauthorized migrants to cross the border looking for work.  Hispanic members of the GOP propose a comprehensive and largely workable 12-point plan for immigration reform. Mainstream reporters such as NBCs Tom Brokaw are beginning to focus attention on America's brain drain -- the loss of talented foreign workers who've become so fed up with the quota backlogs, visa-screening delays and hassles on reentry to the U.S. that they take the education we provided them and leave to compete with the U.S. from their native lands. A new Start-Up Visa bill has emerged (but not as user-friendly as the U.K.'s) to woo foreign investors.

Although movement on immigration reform in Utah is heartening, the country cannot have the states enacting 50 versions of foreign policy or an equal number of immigration codes.  Only the federal government is positioned to steer a unified course on immigration. We can start by asking why the prosperous and rapidly growing BRIC countries (Brazil, Russia, India and China) are shut out from the E-2 treaty-based nonimmigrant visa category.  This entrepreneurial visa allows foreign investors from select treaty countries to start U.S. businesses quickly with whatever minimum amount of capital would ordinarily be sufficient to begin operations and start hiring, rather than invest the minimum $500,000 and create the ten jobs needed for the investor green card, the EB-5, with its costly tax consequences as the added price for permanent residency.

America has waited too long to revamp its immigration laws.  The usual three pillars of comprehensive reform (border security, worksite enforcement and legalization for the unauthorized in our midst) are not enough to make America globally competitive and enticing.  How many more whirlwinds of global change must jostle and buffet us before our leaders in Washington realize that we are falling from our perch as top dog?  Economic prosperity and job creation must be our prime immigration policy, with pragmatism and humane treatment closely in tow.  The sane voices must grow louder and more insistent. Outspoken business and union leaders, and one Tea Party icon, coupled with contrary-to-type Hispanic conservatives, and constant prodding from new economic powerhouses abroad -- all are a promising start.

Posted by Angelo A. Paparelli on February 26, 2011

Immigration ICE Storms Are Brewing: 7 Steps Employers Must Take NOW

The weather outside is frightful. Large chunks of hail are beating the earth in the form of "Notices of Inspection" (NOIs), delivered by U.S. Immigration and Customs Enforcement (ICE).  These NOIsome ICE chunks are hitting the doorsteps of more and more U.S. employers (1,000 have just landed). Even in unlikely San Francisco I understand that at least two large employers are shivering as they prepare to respond with loads of Forms I-9 (Employment Eligibility Verifications) on past and present employees and other requested business records.

In the past, large employers adopted a Goldilocks approach when seeking shelter from the storm.  Businesses of heft and breadth realized that the risk of employer sanctions had historically remained small since the former INS mostly audited small or mid-size employers, and ICE, the successor agency, preferred high-visibility raids over the more tedious inspection of immigration paperwork.  Thus, large employers pursued a strategy of "just right":  Neither so much vigilance over I-9 compliance practices that might risk an antidiscrimination charge, nor so little diligence that might trigger a raid. 

All that has changed with the Obama Administration's focus on civil enforcement through paperwork inspections, followed predictably by fines, orders to terminate unauthorized workers, and criminal prosecution of businesses and individuals the Justice Department considers flagrant immigration lawbreakers.  

Given the change in enforcement strategy, large employers (and those of lesser size) can no longer rely on a Goldilocks approach, as Ted Chiappari and I explain in "Goldilocks' Lessons for Dealing with Bearish Immigration Police," published on February 23 in The New York Law Journal.  Our "Goldilocks" article offers detailed precautions employers of all size should consider immediately to mitigate potential ICE-storm damage: 

1. Review  Immigration Compliance. Engage an experienced immigration law firm (other than the one used to prepare and submit the employer's immigration petitions and applications) to conduct a full-fledged 100% audit of all I-9s for current and former employees (including those who joined as a result of corporate acquisitions) and evaluate all other immigration-compliance obligations. 

2. Decide How the Auditor Should Present the Report.  Consider the pros and cons of an oral versus a written audit report.  An oral report advises management without creating what may be an unhelpful paper trail, if not all of counsel's curative recommendations are followed; whereas a written report, submitted to ICE if and when the company is audited, demonstrates good-faith compliance. 

3. Expect Bad News and Deal with It. Even the most persnickety employers who try their darndest to winnow out unauthorized workers are likely to discover that some segment of the workforce has no right to work and must be terminated while the I-9s of others must still be corrected.  Careless employers will fare worse.  Consider conducting the audit in phases, tranches or by worksites so that, if workers must be terminated, replacements can be hired or engaged through a temp agency, and then trained, all of which can occur in less disruptive ways than if a sizable roster of unauthorized employees were fired at once.  Also, be sensitive to the possibility that discrimination and wrongful-discharge claims or union grievances may be lodged, and behave in ways to minimize harm from those forms of employee blowback.

4. Develop and Enforce an Immigration Compliance Policy. Announce to employees and the world your company's immigration policy, namely, that you hire only authorized workers, do not violate antidiscrimination rules, and appropriately discipline those who fail to comply.  Consider other best practices to foster that central policy of maintaining an authorized-only, discrimination-free workplace, maybe even some best practices from IMAGE.

5. Place Controls on Employment-Based Immigration Sponsorship. Make sure the decision to petition for work-visa or green-card benefits on behalf of each foreign worker is justified in writing under objectively fair criteria.  Protect against cronyism.  Centralize due-diligence and signature authority concerning the factual representations made in all immigration submissions.  Require systematic record-keeping and compliance with other obligations such as posting and good-faith recruiting procedures.

6. Add Immigration Protections to Vendor Contracts and Manage Vendor Conduct.  Avoid the risk of deemed co-employment and of being tainted by the possible immigration violations of vendors and consultants.  Make sure immigration-related attestations made for the benefit of vendor employees are vetted for accuracy and that vendors are contractually required to adopt and enforce their own immigration compliance policies, with contractual penalties imposed for noncompliance.

7. Strengthen Global Mobility Management.  It's not just about complying with U.S. immigration laws.  Foreign countries' immigration statutes can be just as nasty when the rules are violated.  Other laws outside of the immigration domain, such as the Foreign Corrupt Practices Act, the new United Kingdom anti-bribery legislation, taxation, employee benefits, employment laws, and conflicts of law, as well as European Union and national regulations relating to privacy and electronic-data transmission, must also be honored.  Bad immigration press and sanctions in one country may spark a storm of brand damage around the world.

In short, Goldilocks' behavior (lying dormant in a domain where cold-hearted ursine characters are likely to frequent) is no longer safe for prudent employers.  Beware the ICE Bears.

Posted by Angelo A. Paparelli on January 29, 2006

GLOBAL HIRING: ARE YOUR RECRUITERS READY FOR THE WORLD STAGE?

By Angelo A. Paparelli

Demographics don’t lie. Populations in the developed world are aging rapidly, especially in Europe, Japan and Russia. To a lesser but still pronounced degree, the ratio of older to younger citizens is also projected to increase in the United States, Australia, New Zealand, Canada, Singapore, Hong Kong, Taiwan and South Korea. At the same time, the global market for knowledge workers, especially in the STEM fields of Science, Technology, Engineering and Mathematics, is growing ever hotter with no cool-down in sight. More troubling still, China, India and other fast-rising global competitors with sizable populations are producing STEM graduates with Masters and PhDs, and submitting patent applications, at a more rapid pace than the world’s perennial leader, the United States.

The trend lines of these forces are ominous. Increasingly, globally competitive businesses must broaden the recruiting search beyond national borders if they are to secure the brightest and best workers. As new, more demanding jobs are created, will your recruiting team find and hire the best of a globally scarce lot? One essential way to prepare your company’s recruiters is to confirm that the team makes optimal use of employment-based options under U.S. and foreign immigration laws. Another equally important measure is to provide recruiters with the training and resources required to avoid the many mission-killing snares of global migration.

This article will offer tips on best practices in global recruiting. It will also suggest precautions your company should take to avoid the glare of adverse publicity, the arrest of company personnel and the imposition of stiff fines for violating a nation’s immigration laws.

It’s the 21st Century: Do You Know Where Your Recruiters Are?

Many companies have built their recruiting models on a solid domestic foundation, with incremental growth coming one country at a time. The premise for this approach has been eminently sensible. People on the ground in a particular country are best suited to know the labor market, maintain knowledge of nation-centric immigration and visa laws, and hire local lawyers or other service providers to cut through the immigration red tape. But this focus on location-specific recruiting management has rapidly been overtaken by events.

Today, it is by no means unusual for Hiring Candidate A, a citizen of Country B and permanent resident of Country C, with a spouse from Country D, to be stationed initially for training in Country E, and then permanently assigned to Country F. Which country’s recruiting team is best tasked with the unenviable chore of sorting out multinational immigration compliance? How will senior management be assured that, in this common scenario, resources are best deployed, costs kept under control and a hiccup-less process for new-candidate hiring will occur?

Many businesses now realize that the best way to clear the global hire’s path to success at the company is through a combination of local immigration resources and centralized oversight and support. With this approach, a global-hiring database is made available to the entire recruiting team, globally compliant case-management software gathers the required immigration data and documents on every candidate’s academic credentials and career history (while tracking immigration and hiring deadlines), and the services of globally-capable or location-appropriate immigration providers are obtained at favorable rates.

Is Your Company Recruiting “Stealth Employees”?

A dangerous “under-the-radar” practice is growing in frequency. The “stealth employee” can be a new recruit or transferee from an affiliate, often one slotted to fill a senior position, who enters the country of intended employment without first obtaining proper immigration visas or work permits. Frequently, the process moves ahead at a fast clip. Here is a very realistic scenario:

Step One: Candidate accepts offer to work in a country other than that of the person’s nationality or permanent residence. Step Two: Press release is issued proclaiming the appointment, effective immediately, and listing the individual’s new job title and duties in the host country. Step Three: New hire enters the country of employment and expresses to the immigration inspector the intention to engage in “business.” Step Four: The “business visitor” starts working immediately, though lacking a proper visa or work permit to begin employment. Step Five: Arrests, imprisonment, significant fines and penalties, and damage to the business brand and reputation ensue.

Stealth employees risk serious damage to themselves and to the enterprise. The solution is simple. Make sure your recruiters and business managers show restraint. After Step One, Step Two must always involve serious attention to host-country immigration requirements and compliance.

Brand Your Company as Immigration Friendly

For a moment, put yourself in the shoes of a prospective new hire. Imagine you are a top performer with an outstanding track record who must choose among multiple offers for attractive jobs in various countries. You and your spouse (successfully employed in a separate career) have two school-age children. You are willing to move from your home country but wonder how tough will it be to jump each country’s immigration hurdles. You ask yourself which of these companies will stand by my family and me to make sure that the process to permanent residence and citizenship is smooth, immigration requirements are satisfied, my spouse can get a work permit, and our children will be allowed to study all the way through college. Savvy recruiters know that the availability or absence of full-fledged immigration support for the duration of the candidate’s career is often the deal-breaker.

Leading companies also recognize that immigration support requires more than hiring a lawyer and signing papers. Today, with immigration a hot-button political issue, successful companies recognize that developing an immigration-friendly brand requires significant corporate resources. Recruiting, Government Affairs, Media/ Public Relations, and Human Resources must all participate. Company officials must advocate for enlightened employment-based immigration laws and the elimination or expansion of work-visa and permanent-immigration quotas. Success stories of foreign hires who’ve made significant contributions to corporate and national prosperity must be widely publicized. Immigration lawyers must be retained who are not merely procurers of visa benefits but also capable corporate strategists. Any company that wants to glean a healthy share of top foreign talent must be prepared to cultivate and maintain a brand image as an enthusiastic supporter of employment-based immigration in each country where the enterprise does business.

Recruiters Must Know and Take Advantage of All Immigration “Process Opportunities”

Immigration laws and procedures are much like a metaphorical maze. Enter, make a quick left, pass the first intersection, turn left again, and voilà, your new hire reaches immigration nirvana. For others, however, the maze becomes a trap. Your candidate enters and moves through the corridors into the deeper passages of the maze, remaining lost there for unnecessary months and years. The immigration maze is most complex and confusing in the United States; but these days – especially since 9/11 and its aftermath – other countries are rapidly vying with the U.S. for the world title of “Most Complicated Immigration Maze.”

Every developed country, however, also creates immigration process opportunities – special laws, procedures, interpretations, rules, regulations and court cases – that help new foreign hires speed through the maze more quickly. In the U.S., for example, over the last few years the federal government has:

• made it easier for your recruiters to lure away foreign candidates from competitors (using a technique known as “portability”) and thereby piggyback on the immigration procedures and recruiting efforts of prior employers; • allowed companies involved in mergers, acquisitions and other forms of restructuring to continue employing foreign workers after the deal closes without obtaining new permission or amending the employees’ visas; • created numerous special categories offering work visas that are otherwise unavailable, e.g., E-3 visas for Australians, special H-1B visas for citizens of Chile and Singapore, and H-1B visas for foreign students graduating from U.S. universities with Masters or Ph. D. degrees; • allowed spouses of some foreign workers to obtain work permits; and • permitted extensions of stay in the U.S. (beyond normal time limits) for certain foreign employees who are waiting for permanent resident (“green card”) quotas to re-open.

On the other hand, the U.S. government (along with other countries) has made it harder and more expensive to qualify for immigration benefits in many cases. Security clearances can be quick and routine, or slow and burdensome, depending on the content and quality of the visa applications filed with U.S. consular officers. U.S. visa applications submitted at American consular posts and embassies in Canada or Mexico are easily approved for some nationalities and virtually impossible for others.

Unless your recruiters know all about (and are proactive in utilizing) these immigration process opportunities (while staying clear of visa traps), they will be ill equipped to make wise, “immigration-friendly” hires. Senior management must therefore make sure that recruiters are trained in immigration hiring requirements and opportunities, and that the training is updated as often as new developments arise.

Your Recruiters Must Be Wary of Immigration Enforcement Techniques, “Wal-Mart” Style Risks and Government Data Mining.

As foreign recruiting becomes increasingly a business imperative, your company’s recruiting professionals must be sensitive to the flip side of the visa coin, immigration law enforcement. Accessing high-quality foreign talent can do wonders for the bottom line, but inattention to immigration laws can trigger Sarbanes-Oxley exposures, wreak havoc on corporate reputation, lead to expensive fines, and require burdensome consent decrees. Perhaps the biggest problem to overcome is the prevailing perception among some recruiters that immigration is just so much trivial paperwork to sign and submit after a brief and casual skim. The reality is quite different. Immigration statutes, if violated, can trigger a full array of civil and criminal penalties.

Consider, for example, the rules punishing an employer for hiring a foreign worker with knowledge (actual or inferred) that the worker has no right to be employed in the United States. Although the rules took effect in 1986, and are now generally understood, less well known is the law prohibiting the use of a contract to circumvent the ban on unlawfully hiring foreign citizens.

As one prominent example, on March 18, 2005, Wal-Mart entered into a consent decree with ICE (a chilling but appropriate acronym for Immigration and Customs Enforcement, a police agency within the U.S. Department of Homeland Security). The company agreed to pay $11 million to settle allegations (without admitting or denying the charges) that it knowingly used illegal immigrants to serve as janitors in its stores. As civil suits continue against Wal-Mart, allegations have surfaced that a company vice president counseled subcontractors on how to create subsidiaries to avoid immigration rules against unlawful hiring. Whatever the truth may be in the claims against Wal-Mart, the lesson for your company’s recruiting team is obvious. Immigration problems cannot simply be “papered” over and ignored.

Indeed, the required immigration paperwork of an earlier era is rapidly being replaced by the mandatory on-line submission of applications for immigration benefits. Take for example, the U.S. Department of Labor’s new PERM system for labor market testing (required in order for the agency to “certify” that no qualified U.S. workers are available for a job that a sponsoring employer wants a foreign worker to fill).

PERM – an acronym for Program Electronic Review Management – will gather and mine electronic data outlining the recruitment efforts, for years past, of every participating U.S. employer. Before PERM, labor certification applications were maintained in paper files that were sent off to dusty, musty storage in off-site government warehouses. These old paper files were easy for government examiners to send away but harder to retrieve. With PERM, however, a government investigator can learn with just a few keystrokes whether the employer has been consistent and accurate about its sworn statements concerning actual job duties, job requirements and recruitment efforts from application to application over time.

Inconsistencies and inaccuracies in employer requirements can trigger government audits and investigations. Is anyone on your recruiting and HR teams concerned that all claims made by your company are, and remain, consistent and truthful from case to case as time passes? Someone in your company must be. The time may well have already arrived when your company needs to appoint an internal (or external) immigration compliance officer, ombudsman or maven.

The World May Be Flat but National Borders Remain Intact

As the U.S. Supreme Court has said, control of a country’s borders through immigration regulation is an inherent attribute of a nation’s sovereignty. Noted author Thomas Friedman would amend the notion – as he persuasively argues in his best-selling business book, The World is Flat. Friedman asserts that digital communication along the globe-crossed pathways of countless fiber-optic lines is the great leveler of national boundaries. While the predicted fall of international borders is clearly premature, senior management in leading companies must carefully consider whether their professional recruiters are fully prepared to use global immigration laws to capture a generous share of the world’s much-coveted top talent. If your company’s recruiters are “not ready for prime-time” players on the world stage, then management must act.

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