What Business Needs: A National Immigration Policy

Thursday, March 22, 2012 - 11:48

The Editor interviews David Grunblatt, Partner, Proskauer.

Editor: Please tell our readers about your practice.

Grunblatt: Ours is a full-fledged business immigration practice; we provide immigration guidance primarily to employers, corporations and high-net-worth individuals, both immigration benefits (mainly facilitating the transfer or the hire of employees) and compliance with current immigration obligations.

Editor: Alabama recently adopted a racist immigration law, and the U.S. Court of Appeals in Atlanta recently blocked several of its provisions but is withholding opinion until the Supreme Court rules on a similar law enacted in Arizona. Please discuss the provisions of this law that were blocked.

Grunblatt: In addition to creating a real risk that  people in status may be deported erroneously, the law creates an atmosphere where not only does the undocumented alien feel unwanted and fearful, but so too does anyone who looks different or possibly “foreign.” When the workforce is limited because people are afraid to apply for jobs – or even legal residence in the United States – it hurts business.

The blocked provisions include one that bans enforcement of a contract signed by an undocumented alien and a prohibition against all interactions between an undocumented alien and the state or local authorities, e.g., to obtain a driver’s license. Previously blocked was a mandate that schools inventory their students as to their legal status.

The Alabama law is patterned very much after the Arizona law. If a draft gets traction in one state, legislators in other states are likely to use it as a model for legislation in their own. 

Editor: An earlier Arizona law that was less onerous received Supreme Court approval. How can it be distinguished from the pending court case?

Grunblatt: The provisions that got approval in the prior Supreme Court case involved specific obligations of an employer.  SCOTUS upheld the power of the state to impose additional penalties on companies that employ undocumented aliens and to oblige employers to participate in the E-Verify program. In E-Verify, an employer completes the standard process of verifying that a hire is legal and then registers with an interactive system managed by the Department of Homeland Security and the Social Security Administration to verify the documentation. While E-Verify is ostensibly voluntary, some states have imposed it on companies that contract with the state, and in certain states – Arizona, Alabama, Georgia, Mississippi, North Carolina, South Carolina, Tennessee and Utah – any employer doing business in the state must register for E-Verify. The Supreme Court held that the Immigration Reform and Control Act, which preempts the states from legislating immigration locally, gives an exception for licensing rules. Here, the Court used an extraordinarily broad interpretation of what constitutes a licensing rule. This allowed many states to impose the E-Verify obligation on employers with the threat that licenses to do business in the state would be restricted, suspended or cancelled.

It’s not just that federal law should preempt such state actions; common sense tells you that the fact that each state has its own rules and system of enforcement greatly inhibits businesses trying to operate cross-country.

Editor: What are the implications for businesses and their advisors of the spread of E-Verify requirements in the states?

Grunblatt: First of all, companies, particularly those with multistate operations, must now do careful assessments and create compliance programs to address the various state rules. Some businesses will give up trying to avoid registering for E-Verify, even if it imposes a burden, making E-Verify obligatory for all intents and purposes. We represented the U.S. Chamber of Commerce in a suit against the federal government when it imposed an E-Verify obligation for certain federal contractors. While we succeeded in delaying enactment for a year and a half, eventually it was implemented. In all likelihood, when the federal government decides to tackle immigration reform, E-Verify or something like it will become a nationwide obligation, so many companies are getting on board, albeit reluctantly.

That said, a federal law which closes the ‘licensing’ loophole, preempts states from creating their own immigration laws, even if it imposes a nationwide obligation to register in an E-Verify type program would be better for business insofar as it would create nationwide uniformity and predictability.

Editor: A number of measures are currently pending in Congress that would open America’s doors to top immigrant talent. What benefits would ensue from their passage?

Grunblatt: That the U.S. trains foreign nationals in its best schools and throws them out so they can work for competitors overseas is highly frustrating for our clients that are expanding and creating jobs in the United States. Businesses are clearly in a global competition for talent. While the debate continues about whether hiring foreign high-skilled individuals hurts the American market, in the business world it’s a no-brainer that these innovative, creative, smart, talented, trained and motivated people expand businesses in the U.S.

The DREAM Act relates to people who have been in the United States since they were children and seeks to help them stay. The issue may not move you in the abstract, but it does when you meet a highly talented, ambitious young man or woman who has been here since childhood.

The STEM Visa Act applies to people being educated in the sciences, technology, engineering and/or math (hence, “STEM”) areas where we have a dearth of talented people. Forcing the people who can do advanced research, applied engineering or create innovative technology to leave the country is just absurd.

Editor: The limit of 65,000 persons for H-1B visas (with another 20,000 reserved for U.S. advanced degree graduates) requires employers to plan well ahead for getting their requests inside the quota limits. What advice do you give your clients who need to access foreign immigrant talent?

Grunblatt: This is a classic example of something that ought to be changed but can’t be in the current political environment. H-1B visas become available October 1 (when the government fiscal year begins), and employers can begin filing petitions April 1. This means that if today my client identifies an extraordinarily talented potential hire and wants to qualify that person for a visa, my client must wait until April 1 to file, and while we can probably get the petition approved very quickly, the hire can’t start working until October! Businesses just don’t work that way.

There are alternative visas, but they have very limited applicability. Some individuals may qualify as aliens of extraordinary ability and others as trainees. Certain countries through trade agreements and treaties may have some visa options available to their citizens, but for most waiting for the H-1B is the only option.

Editor: The EB-5 Immigrant Investor Visa program allows foreign investors to quickly obtain a green card in exchange for a $500,000 investment in a business. Has it attracted many participants?

Grunblatt: The EB-5 program has actually been in place since the late 1990s and has just been rejuvenated in the last couple of years. Historically, the rules and regulations were so restrictively applied that it was virtually a non-factor – perhaps a few dozen were approved in any year. Because in our current economy many businesses are starving for financing, the United States Citizenship and Immigration Services (USCIS) polished off this gem and took some significant initiatives to make it more business friendly, such as facilitating the creation of regional centers to attract foreign investors. The USCIS has also enlisted business professionals to work with their teams, added substantial EB-5 information to its website and launched a series of educational seminars and programs.

However, the program is risky. The rules require a minimum investment of $500,000 in most situations (in others it’s $1 million); more important is the requirement that the investment create 10 U.S. jobs once EB-5 status is granted. Maintenance of the status is conditional for two years, and if a business fails or doesn’t continue to fulfill its requirements, there is no forgiveness in the system. That said, the program has seen a marked increase in participation, which will probably continue and will become more predictable over the next few years.

Editor: The L-1 visa category allows companies to more easily transfer their key personnel from foreign offices to the U.S. However, DHS and the State Department have narrowed the definition for “key personnel.” What practices should corporate counsel follow?

Grunblatt: This is another frustrating area because it is so subjective. Corporate counsel must document very carefully what the potential transferee brings to the table, what ”specialized knowledge” in terms of driving projects. It’s highly advisable to give context – to delineate how this individual’s work on a project will generate U.S. employment – rather than document in highly technical language the specifics of the individual’s skill set. The tension within the Service right now is between those who want to shut the door and those who want to encourage growth of business in the United States, so it’s to your client’s advantage to point out how the transfer will benefit Americans.

After many requests, the current commissioner of USCIS has promised to produce better guidelines and criteria for defining “specialized knowledge.”

Editor: How should HR personnel (and other personnel performing onboarding functions) be trained with respect to I-9 audits?

Grunblatt: After some negative experience with work site raids, the DHS has picked up the I-9 audit as its favorite enforcement tool, one that is more efficient and profitable.

Clearly, the employees conducting the I-9 process should receive regular hands-on training. In addition, a reputable outside expert, such as legal counsel, should perform spot audits of a company’s I-9 forms. Filling out I-9s is often left misguidedly to a junior person or to someone untrained. It’s not uncommon for me to conduct a spot audit and find significant mistakes in 30 out of 100 I-9s. Many companies are now using electronic I-9 record keeping and engaging third-party services, but be vigilant about third parties because DHS has very specific requirements for electronic record keeping, particularly with regard to preservation of the audit trail.

Editor: The USCIS’s Fraud Detection and National Security officers are actively visiting companies – unannounced – to verify their immigration petitions. How should employers prepare themselves?

Grunblatt: The biggest problem is that officers always seem to catch everybody by surprise. First, alert the receptionists that if a visitor asks to speak with “the H-1B visa holder” or “the HR person,” they must send the investigator to the designated person – be it the HR professional or legal counsel – promptly.

Second, don’t be intimidated by the process. The site visit system is not a hostile process, at least for now. Investigators are largely interested in simply confirming whether or not a particular person is working at a particular company in accordance with the terms of the petition. They have a checklist and a quota of offices to visit, and while they have no objection to attorneys attending a meeting, they’re generally in a hurry and usually will not wait. Be sensitive to the fact that these people are basically fact gatherers with a system in place.

Editor: Is there anything else you’d like to add?

Grunblatt: Certainly there are many challenges to what I do, but nevertheless, I love what I do because I see how indomitable the human spirit is. While it can be frustrating for employers, if they persevere, they will succeed in hiring the talent they need to benefit their companies, their employees and their country.

 

Please email the interviewee at dgrunblatt@proskauer.com with questions about this interview.