Immigration Compliance: What's At Stake?

Monday, October 1, 2007 - 00:00

Though a host of immigration issues existed in the United States and abroad well before September 11, 2001, the terrorist attacks brought into alarmingly sharp focus an almost urgent need to know just who is within a country's borders, how they got there - and why. At the same time, an increasingly global marketplace has created a critical need for people to move quickly and efficiently into far-flung locales to do business. Both these concerns, along with a renewed sense of corporate responsibility in a post-Enron business climate, have created a virtual push-and-pull of interests that has forced today's corporations both in the U.S. and abroad to make compliance - and a mounting burden of responsibility - a top priority.

"As the footprint of immigration continues to expand, compliance has become the preliminary issue to be addressed," says Lance Kaplan, managing partner of the International Practice Group at New York-based Fragomen, Del Rey, Bernsen & Loewy, one of the world's foremost corporate immigration law firms. "Compliance has definitely taken on a much more significant role on the worldwide stage." But compliance - in the immigration sphere, roughly defined as being in line with the regulations of the particular jurisdiction into which a person is moving - is much more than just making sure visa paperwork is filled out correctly.

"Being compliant requires a complete understanding of the nuances of the country in which a foreign worker is entering," says Kaplan. "The biggest misunderstanding is that filing a work permit application is simply the completion of a form and checking the appropriate boxes. The truth is, nothing could be further from the reality." Compliance, says Kaplan, is about mitigating risk by understanding how moving a worker - either inbound into the U.S. or outbound to a foreign market - impacts not just the employer but the employee as well. "Employers rely on Fragomen to know that even though an employee qualifies for a seemingly simple visa category, it might be the worst decision to use that visa," he says. "There might be another category that appears more complex, but is far more appropriate and ensures that the company is exposed as little as possible." Without a doubt, the name of the game is being able to balance business needs against the consequences of failing to comply - and knowing that the very concept of compliance in and of itself is inexorably linked to risk management.

Other compliance issues arise for corporations that need to move personnel into increasingly remote markets, many of which don't have consistent immigration rules in place or simply aren't prepared to process the volume necessary. "Immigration laws and regulations in the 'emerging markets' haven't caught up with the pace of globalization and companies' need to put personnel in those locations," Kaplan says. "How do you know if you're compliant if you don't understand what's needed or if it's not clear?" Again, says Kaplan, that's where the notion of suitable, skilled representation comes in; Fragomen, with its network of 31 offices around the globe, is able to assist clients in gaining footing with governments everywhere.

"Where policy is unclear or inconsistent, or rules are in a state of flux, we are often called upon to represent the client's organization before government officials and negotiate on behalf of the client," he says. "But you have to go into that representation with a significant amount of experience." Fragomen helps establish a rapport with governments, in essence becoming a client's business partner. Efficiencies are gained in the long run, and while it might take more time from a business perspective, it's often the best option from a strategy perspective. "Companies that are globalizing in markets where immigration legislation is immature or non-existent are well advised to try and engage with governments," Kaplan says. "Not every government is willing to be engaged, so managing this process can be complex, but if successful may lead to more effective results, all the while balancing against the practical business needs of the organization."

"Much of the global immigration compliance focus has been led by the U.S. post 9/11," says Cynthia Lange, managing partner of Fragomen's Northern California offices and managing partner of its I-9 Service Center Compliance Practice. Because the U.S. is still the top destination of choice for foreign workers, global companies are affected by U.S. immigration compliance requirements. Each visa category has its own individual compliance aspects, and various U.S. government agencies investigate whether a company has met all the requirements.

Another major component of the U.S. compliance process revolves around the proper completion and storage of I-9 forms, which verify an employee's legal ability to work - and is also another example of how there's much more to it than just filling out a piece of paper. Audits and spot checks are a very real possibility and the consequences of failing to comply with the law are dire - from stiff financial penalties to prison sentences. "That's where our I-9 service center comes in," says Lange. "It's a robust tool from a technology standpoint, but it's also a group of professionals who guide clients to become compliant." The firm is able to do everything from simply managing documents to outsourcing a company's entire I-9 program - and also offers a higher level of support in the face of more serious criminal investigations.

"In addition to the complex federal compliance rules, individual states have even crafted their own immigration compliance rules," Lange says. "Most of these state laws require employers to ensure their workers are authorized to work in the U.S." In some cases, states have even mandated employers to use "E-verify" to check the work authorization of their employees. "E-verify," administered by Homeland Security, is a web-based system that searches government records to verify a new employee's work eligibility.

But rules vary from state to state. Lange says that while Arizona is requiring employers use E-verify starting January 1, 2008, Illinois just passed a statute that prohibits employers from utilizing it. "There are a lot of questions as to what individual states' authority encompasses," Lange says. "Until we get answers we expect there to be a lot of confused employers." To help employers navigate this complicated compliance web, Fragomen has developed sophisticated compliance systems that assist employers with everything from completing and managing I-9s to tracking state legislation, to maintaining backup documentation in the event of a government audit.

Lynn Shotwell, Executive Director of the American Council on International Personnel (ACIP), a group that advocates at the policy level on global mobility issues, says her organization is able to handle a corporation's J-1 visa program - a reciprocal training and cultural visa administered by the Department of State for trainees and interns - which underwent changes earlier this year that tacked on additional compliance requirements. "In-house sponsorship of J-1 visa programs requires people who are well trained, can immerse themselves in the program and know that the company is in compliance," Shotwell says. That's where the ACIP steps in: It monitors and tracks the movement of J-1 holders, files the appropriate forms and makes sure the trainee is getting what he or she was promised out of the program - all the while keeping in constant communication with the Department of State and U.S. consulates about changes in policy and procedure.

Along with the work requirements, there is also a cultural training contingent, Shotwell says, in which visa holders are immersed in American culture. "That part of it is often overlooked," she says. "You can't just hand someone a brochure and a ticket to a ballgame and call it cultural training. We ask the companies to document what they do to that end, and we establish programs, for example, where trainees can do tours of New York or Washington, DC and learn more about our nation's history and diversity."

As for the new compliance obligations, Shotwell says the Department of State has made changes to who is eligible for J-1 visas - it used to be that everyone came in under one designation, and now there are two: intern and trainee - and ramped up requirements surrounding who signs off on the visa holder's training. "There is more liability for managers overseeing the training and there are also new English language requirements," she says. "It's always been that the trainee needs English skills to do the job, but now you have to confirm it." These changes, Shotwell says, are borne from concern that certain programs were authorizing people to come to the U.S. without skills and were not providing the training that was promised. Shotwell says more and more companies are turning to the ACIP to handle their J-1 visa programs in the face of stiffening compliance requirements. "They're determining that establishing a compliant program in-house is hard and so they're outsourcing it," she says. "But the same concept applies to all aspects of immigration. It's so complex, you just can't keep up with it part time and is something that requires a team of people with expertise to stay on top of it on a daily basis."

And that, of course, is where law firms such as Fragomen come in. "What we do is work with our clients to craft the best plan to meet their business needs in terms of immigration," says Lange. "We live it all the time and are immersed in it all the time."

Lynn Shotwell (lynn_shotwell@ acip.com) is Executive Director of the American Council for International Personnel, an organization founded in 1972 that helps shape immigration policy at the federal level. Lance Kaplan (lkaplan@fragomen.com) is the Managing Partner of Fragomen, Del Rey, Bernsen & Loewy's International Practice Group. A former partner responsible for global immigration services at a Big Four accounting firm, he directs Fragomen's non-U.S. practices. Cynthia Lange (clange@fragomen.com) is Managing Partner of Fragomen's Northern California practice. A former trial attorney with the Immigration and Naturalization Service, she also manages the firm's I-9 Service Center Compliance Practice.

Johanna Marmon is a New York-based journalist and author who writes on a broad spectrum of industries, including law, pharmaceuticals and the luxury travel market.