Business Immigration: Bringing The Best And Brightest Into The U.S. In The Face Of Increasingly Stringent Restrictions

Friday, June 1, 2007 - 01:00
Mark D. Koestler

Theodore (Ted) Ruthizer

Mark D. Koestler

Editor: Would each of you gentlemen tell our readers something about your professional experience?

Koestler: I am a partner at Kramer Levin and a member of the business immigration group. I have been practicing in this area of the law since 1993. I am a former Chair of the New York Chapter of the American Immigration Lawyers Association.

Ruthizer: I have been practicing in the field of business immigration for 30 years. I am a past President and General Counsel of the American Immigration Lawyers Association and, for the last dozen years, I have taught immigration law and policy at Columbia Law School.

Editor: Please give us an overview of the business immigration practice at Kramer Levin.

Ruthizer: We represent a variety of companies, large and midsized, cutting across a range of sectors. This includes media and publishing, finance, banking and the entertainment area. Among our clients are McGraw-Hill, Time Warner and Banco Santander. We also work with a broad array of advertising and public relations agencies. We represent these companies in connection with the hiring and transfer of foreign national professionals, executives and managers.

There is a paradox here in that, while our clients recognize the need to bring the best and brightest foreign national talent to the U.S., the laws have made it increasingly difficult for them to do so. For example, companies rely on H-1B visa status for professional employees serving here on a temporary basis. That category includes economists, computer professionals, editors, lawyers, accountants, financial analysts, advertising executives, bankers and many others. The quota is so artificially low - 58,000 - that it was used up in the first day of filings for FY 2008. When the authorities cut off the filings they received almost 124,000 petitions, which prompted them to hold a lottery to see which of this number would be accepted. The result was fewer than half. U.S. companies are being left high and dry on bringing in the people they need. This is really a desperate situation, and we are hopeful that Congress will act to rectify it.

Editor: A business immigration practice interfaces with a number of other legal disciplines. What are the principal ones that you call upon in your practice?

Koestler: We work closely with the employment lawyers at the firm, and together we are dealing with the same people at the client end, namely the human resources professionals and the legal department. We make use of a wide range of practices areas here, including corporate, tax, real estate and private client services.

Editor: The recent Bloomberg-Schumer Report indicates that the current U.S. immigration regime may be a significant impediment for U.S. capital markets to grow. Without access to skilled workers from abroad, many companies are more willing to develop their presence elsewhere, in countries where these barriers do not exist, such as the UK. Do you agree with this assessment?

Ruthizer: I agree with that. There are many problems. Visa delays as a consequence of lengthy background checks, for starters. And nationals of certain countries are scrutinized more than others. For example, we were recently able to obtain quick immigration approval for one of our major clients for a senior level manager in its London office to serve as managing editor of the U.S. publication. This person is British born and raised. However, he is of Bangladeshi descent, and his visa application has been held up at the American Embassy in London for six months now because his name may match one on a list of undesirables. Certainly, the U.S. government has vital interests in making sure that we do not admit people who are going to seek to commit terrorist acts, but the process should not take months. The mechanism is so flawed that many other countries are able to challenge us in bringing the most creative foreign nationals into their workforce.

There are also enormous backlogs for people seeking permanent resident status. The quotas are artificially low, and they are particularly onerous for nationals of countries such as China and India, where there is high demand. The problem is further compounded by waits that can be six to seven years long. All of these things contribute to make this a very unsatisfactory system.

Editor: All of this is hurting our economy. What are the chances of Congressional action?

Ruthizer: There are a number of factors which make it difficult for Congress to address this problem. There are always unemployed Americans, and Congress is particularly sensitive to the demand that we take care of our own first. The positions that we are concerned about are very specialized, and the employers are unable to find Americans to fill them at the same level of quality and expertise. That does not help Congress deal with the misperceptions of the public, however.

Another problem that clouds the issue of legal immigration is the enormous concern over illegal immigration. Politically no one wins votes by saying that they are in favor of more immigration, and when we are talking about legal, as opposed to illegal, immigration somehow this gets lost in the heat of the debate.

Recently Bill Gates and Mayor Bloomberg testified before Congress on the need for more visas for the skilled foreign nationals who will enable us to better compete in the global economy. I think that most people understand that our country benefits enormously from having the economy's immigration needs met at the high end. And I trust that we are making progress in differentiating that type of immigration from the negative connotations associated with persons here unlawfully.

Editor: The Bloomberg-Schumer Report recommends that the U.S. increase the number of skilled worker visas and reduce the time lag that arises when transitioning from a student visa to a skilled worker's visa. Do you think that these steps are sufficient to address this problem?

Ruthizer: Well, they are steps in the right direction. It is important to understand that until 1990 we did not have an H-1 quota. I think that we ought to let the marketplace determine the appropriate numbers. For example, when the technology bubble burst in 2000-2001, the demand for H-1B visas fell off dramatically. The jobs were simply not there. Similarly, it would be enormously helpful if the system could be corrected to enable people to avoid waiting around for six or seven years to find out whether they are going to be granted permanent residence.

Editor: Last year you wrote for us on premium processing in employment-based immigration. Would you provide us with a status report on this initiative?

Koestler: The initiative seems to be working well. What premium processing does is to permit, for a fee of $1,000, the adjudication of a case within 15 days. To be sure, there is a sense that this is unfair because it allows those who are willing to pay to jump to the head of the line. In the absence of an overhaul of the entire system, however, it does provide a way for us to offer our clients with a quick turnaround.

Editor: Trying to boost the competitiveness of U.S. capital markets is an obvious reflection of the role we play - and hope to continue to play - in the global economy. But we also have security concerns. Will security concerns trump the increasing integration of the world's economy?

Ruthizer: Both security concerns and the competitiveness of our capital markets must be taken into account. When we talk about comprehensive immigration reform, we are talking about both concerns. Security checks should continue to be stringent - we need to keep some people out - but they should not take six months to a year to complete.

There are major flaws in the statutory regime that governs the unlawful immigration problem, going back to 1986 when employers became subject to sanctions for the first time. The law permits a multiplicity of documents, but employers are penalized if they are found to be discriminating against an employee in questioning those documents. If we were to have an accurate national employment database in place, based on the social security database - something that would permit the employer to verify the right of the employee to work - this would go very far in correcting the problem.

While a practice such as ours is concerned with immigration at the high end of the economy, people in the hotel and restaurant industry, among many others, have a legitimate interest in being able to bring in lesser-skilled people they need and cannot find within the U.S. Both aspects of the immigration quandary need to be addressed, and if we can resolve the problem at the low end, we will go far in reducing the flow of unlawful immigration.

Koestler: The security concerns need to be dealt with in a sensible way. They affect U.S. citizens as well as foreign nationals. Everyone, American or otherwise, who lands at an international airport in the U.S. is screened for admission. If their name appears to be a near match of a name on the threat list they must go through a secondary inspection to determine whether the individual is the same person that is named on the list. I think most people will say that to do this once is absolutely reasonable. To do it every time that person seeks readmission (after they have already been determined not to be a match) is not.

Ruthizer: The biometric technology is there to do this. Homeland Security has been very slow to take the appropriate steps.

Editor: What about the future? What are the issues that you expect to see in your practice over the next few years?

Koestler: If there is new legislation, we will see more enforcement activity. In such event, a growing area of our practice will be addressing of sanctions with respect to employers who hire people who are not authorized to work or whose I-9 documentation is not in order.

Ruthizer: In addressing how to admit those who are employment-based immigrants, there is a movement to devise a point system. This is a merit-based system where so many points are assigned to a person's education, language ability, work experience, and so on, and it appears to have worked well in the UK, Canada, Australia and elsewhere. This should not replace the current system, but it would provide an additional way for people to qualify.

Properly designed and administered, such a step would be very helpful in resolving the issues around high-end business immigration.

Editor: Where would you like to see this practice in, say, five years?

Ruthizer: The practice continues to grow at a healthy pace. We have been adding new lawyers, paralegals and other support staff on an ongoing basis, and I think this is only going to continue. I believe that our group's high standing, among the leading practitioners of business immigration law, will continue to grow.

Please email the interviewees at or with questions about this interview.