Immigration Reform 2014 From A Leading Expert

Friday, March 21, 2014 - 16:53

The Editor interviews Austin T. Fragomen, Jr., Chairman of the Executive Committee of the leading immigration firm Fragomen, Del Rey, Bernsen and Loewy, LLP. He is also the founding author of the renowned series of immigration handbooks that provide information on best practices and latest developments in the field of business immigration published by Thomson Reuters/West.

Editor: What is the current status of proposals in the House of Representatives for reforming our immigration laws?

Fragomen: House leadership has made it clear that the House is not going to vote on one huge comprehensive immigration reform bill, like the Senate did last year. There are a number of House bills, however, that attempt to address immigration reform on an issue-specific basis. For example, the Border Security Results Act of 2013 passed unanimously out of the House Homeland Security Committee. This indicates bipartisan support for the notion that we need to strengthen border enforcement. There are also four bills that passed out of the House Judiciary Committee. The SAFE Act (sponsored by Trey Gowdy, R-SC) would criminalize unlawful presence in the United States and would empower states and cities to enact their own immigration laws. The Legal Workforce Act (sponsored by Lamar Smith, R-TX) would make E-Verify mandatory. The Agricultural Guestworker Act (Bob Goodlatte, R-VA) would create a new visa for farmworkers, but stakeholders oppose its key measures. The SKILLS Visa Act (Darrell Issa, R-CA) includes provisions increasing the availability of both H-1B visas and of green cards for employment-based immigrants. But this bill would also eliminate certain family-based immigrant visas and eliminate the Diversity Lottery, which will be a tough sell among Democrats. All four of these bills passed out of committee with exclusively Republican support, so clearly changes will be needed if they are to make it further through the floor process in the House. Note, too, that these House bills were all introduced before the Senate passed its comprehensive bill. So there are big gaps in reconciling even those provisions that are common to the House and Senate bills. The House can thus be expected to add numerous amendments to address these gaps.

Editor: Do you agree with many leading economists that reform of the immigration laws may provide a boost to economic growth?

Fragomen: I don’t think there is any question that immigration is good for the U.S. economy. There is plenty of data that supports this. For example, in 2013, the nonpartisan Congressional Budget Office released two reports that analyzed the Senate’s comprehensive reform bill, and these reports concluded that legalizing the estimated 11 million undocumented immigrants already living and working in the United States and increasing the availability of immigrant visas to other new immigrants would increase revenues more than it would increase government spending – leading to a reduction in the federal deficit by almost $200 billion in the next decade and by an additional $700 billion in the subsequent decade.

Immigration helps the economy in many other ways as well. High-skilled immigration brings in immigrant entrepreneurs who create jobs for American workers. Immigrants make up 25 percent of the founders of venture-backed U.S. public companies started between 1990 and 2005. Immigrants also receive patents at twice the rate of native-born U.S. citizens. Foreign-born STEM workers in particular increase employment and wage opportunities for U.S.-born workers in both STEM and non-STEM fields. Low-skilled immigration is also good for the economy because it helps fill gaps at the lower end of the U.S. labor market such as agricultural jobs. For example, in states like Alabama and Georgia that tried to enact state-specific immigration enforcement laws along the lines of Arizona’s notorious S.B. 1070, immigrant workers fled in droves, leaving crops rotting in the fields as native-born workers declined to pick up the slack.

Editor: What compliance systems should companies adopt to assure they are not in violation of the current immigration laws?

Fragomen: It is critical for all employers to ensure that they are compliant with federal laws relating to the verification of employees’ employment eligibility, as the government often imposes harsh penalties not only on employers who deliberately hire unauthorized workers but also on those who make inadvertent errors on the eligibility verification form known as Form I-9. In addition, many employers are required under either federal or state law to participate in E-Verify, the federal government’s electronic employment eligibility program. Under federal law, many federal contractors and their subcontractors are required to use E-Verify. Many states also require that some or all employers use E-Verify. It is therefore important for employers to review their internal policies and establish best practices that will protect them from liability and maximize efficiency. This is especially true of large employers with operations in multiple states that may have different requirements.

Of course, employers who recruit foreign talent must vigilantly comply with all immigration-related laws and regulations. The consequences of noncompliance are significant. The Departments of Labor (DOL) and Homeland Security (DHS) have increased their audits and investigations of employers as part of an administrative effort to redirect immigration enforcement from workers to employers. It is no longer sufficient for employers simply to react to the government’s enforcement actions. Instead, employers must be proactive in developing programs that ensure ongoing compliance with various agency requirements governing visa petitions, labor condition application (LCA) rules for H-1B workers, off-site placement of H-1 and L-1 workers, business visits by overseas workers on B-1 visas, and labor certifications (i.e., PERM applications), among other areas.

Editor: How should employers prepare for an immigration audit?

Fragomen: In today’s environment of heightened immigration enforcement efforts by federal and state governments, employers would be well-advised to conduct internal audits to ensure that they are in compliance with all visa and employment eligibility verification regulations. This includes training human resources staff and in-house legal counsel, developing internal programs and protocols, and drawing on resources from their immigration counsel to manage a robust compliance program. In the event of a government audit, staff should be advised to contact the company’s immigration counsel immediately. But a company that has already trained its staff well and that has already instituted protocols to ensure that it is compliant with all applicable immigration laws is the best prepared.

Editor: What do you think of the proposal that immigrant children who were brought to this country as minors should be granted a path to citizenship provided they meet certain requirements?

Fragomen: I think it makes sense, from a purely humanitarian point of view, to provide lawful status to children who were brought here through no fault of their own. Growing up in America, these young people may have few ties to their countries of birth and often don’t even speak the language of their birth countries. Shutting them out of opportunities for higher education and good jobs isn’t good for them and isn’t good for the country. I also think there is broad support for the idea in Congress, notwithstanding the fact that the DREAM Act has been around for over a decade and has never passed both houses of Congress. Rep. Goodlatte, chairman of the House Judiciary Committee, has said he will introduce legislation known as the KIDS Act, which is similar to the DREAM Act. The House leadership’s “Standards for Immigration Reform,” which was released at the end of January, also indicates that there is support at least among the Republican leadership for a bill that would provide a path to legal residence and citizenship for foreign nationals brought to this country as children, so long as they meet certain eligibility standards and either serve honorably in the military or earn a college degree.

Editor: What solution does the House have for employers who need highly skilled talent from abroad?

Fragomen: The SKILLS Visa Act would make more H-1B visas available each year, which should help employers plan better. Under the current system, during the first week of April the government is flooded with more H‑1B petitions for the next fiscal year than it is permitted to approve. This means that employers are literally putting their petitions into a lottery and may end up not being able to hire half or more of the prospective employees they have recruited to fill critical jobs.

But the bill’s provisions related to permanent residence – immigrant visas, or “green cards” – could be improved. To attract and, more importantly, to retain foreign talent to fill positions that companies cannot fill from the U.S. labor pool, employers need to be able to offer permanent residence. But backlogs can keep people waiting for green cards for years, sometimes decades, and highly skilled foreign workers these days can often find jobs in other countries with friendlier immigration policies – or even in their home countries, whose economies may be growing and creating more jobs, especially in the STEM (science, technology, engineering and mathematics) fields. The SKILLS Visa Act would add new visas for those who have received advanced degrees in a STEM field from a U.S. university. It would also add a small number of additional immigrant visas for professionals and those with advanced degrees. But the bill needs to do more to eliminate the lengthy backlogs that currently exist and that are driving foreign talent to other countries.

In addition, the SKILLS Act and the Senate bill both include wage provisions that would likely be counterproductive. For example, some employers would be compelled to pay certain foreign workers, such as those holding H-1B visas, more than American workers performing similar work. If the point is to kill the H-1B visa program, such provisions might do the trick, but doing so risks driving more jobs offshore to countries brimming with talent that U.S. companies need. Keep in mind that the law already protects the U.S. labor market by requiring employers to pay their H-1B workers the higher of either the prevailing wage as determined by the Department of Labor or the actual wage that they already pay to employees performing similar work. The ideal system would be one that relies on the employer’s actual wage system. Where an employer has a well-defined wage system, the Department of Labor should accept it. Otherwise, under the formula set out in the SKILLS Act, many employers would be required to pay foreign workers at a higher rate than U.S. workers, which really isn’t the point. So these types of wage provisions seem like overkill and would probably do more harm than good to the U.S. economy.

Editor: Do you see any likelihood that any measure affecting our present immigration system will pass the House this year?

Fragomen: At this point it is highly unlikely that we will see any immigration-related legislation passing the House before the mid-term election in November, though there is some chance we could see some activity after the primaries and before Congress recesses for the summer. One thing is certain, and that is that both the business community and grassroots immigrant advocates will continue to pressure Congress to do something to fix our broken immigration system. Even if legislation passes in the House, the Republican strategy of keeping the Democrats on the defensive is expected to prevail, and therefore only provisions that are relatively non-controversial, such as Rep. Issa’s SKILLS Act, are likely to pass. A Republican bill that combines STEM and DREAM Act-type provisions would be difficult for the Democrats to oppose, even if the Democrats would prefer a more comprehensive approach. But the political gridlock in Washington makes any predictions difficult.

Please email the interviewee at afragomen@fragomen.com with questions about this interview.