On Jan 27 2020 by Klasko Immigration

Klasko Immigration Attorney Explains the Essentials in a Virtual Roundtable

Recently Lisa Felix, one of the experienced employment based immigration lawyers at Klasko Immigration Law Partners,  participated in a virtual roundtable with CorporateLiveWire as an expert panelist alongside other notable immigration attorneys from around the world. She elaborated on the current state of employment based immigration law and the obstacles faced by employers and foreign nationals under the current administration.

Below is an overview of some of the hot topics and pressing issues Felix covered during the discussion:

  • The Current Conditions of the Labor Market & Immigration Climate

In her initial response, Lisa explains that the U.S. labor market is strong, with unemployment rates falling to 3.7% in June 2019. She acknowledges that, although demand is high in various fields for highly skilled foreign employees, the “immigration climate [is] harsher for companies that rely on [employment based immigration] and uninviting for […] foreign nationals to continue to live and work in the United States.” According to Lisa, over the past two years under the Trump Administration, immigration has tightened due to travel/entry restrictions, highly publicized audits and raids, long processing delays, significant policy changes, etc.  

  • Regulatory Changes & Developments in Immigration Law

The primary changes in employment based immigration services can be traced back to Executive Order 13788, “Buy American and Hire American” (BAHA). The objective of the BAHA is to “raise wages and employment rates for American workers and to rigorously enforce and administer the laws governing foreign workers. BAHA is significantly obstructing American companies from bringing in and keeping highly skilled foreign workers. Lisa provides a list of recent changes, most of which take the form of policy memos, that did not necessarily alter existing laws or regulations, but which have transformed their interpretation and execution. 

  • Main Obstacles for Multinational Companies Transferring Highly Skilled Employees Across Borders

Lisa notes that there are two large hurdles facing employers: adjudication uncertainty and quotas. She explains that “the rates of requests for additional evidence (RFEs) and denials of H-1Bs are more than double what they were two years ago.” In addition, inconsistent policies with regard to adjudications are making it more challenging to predict how the government will treat petitions and applications. Furthermore, decades-old quotas for accepted applications and petitions make it more difficult to bring in qualified foreign nationals. These quotas were established nearly 30 years ago in some instances, and in general, quotas do not consider economic data or industry growth.  Such restrictive regulations and policies can “foil the business plans and goals of U.S. employers.” 

  • Key Considerations in Devising Strategy for Immigration Compliance

Due to more stringent compliance requirements and checks, Lisa lists critical considerations for employers to develop a strong immigration compliance plan, including using E-Verify to check eligibility for employment, consistent and compliant completion of I-9s and self-audits, as well as preparations for site audits and visits, among other considerations. The best way to ensure compliance is to consult an employment based immigration lawyer to provide necessary self-checks and updated “guidance through this complicated and ever-changing area of law.”

  • Expected Trends to Emerge Over the Next Year

Lisa notes there is a growing client frustration, both corporate and individual foreign nationals, over the delayed and inconsistent adjudications of immigration applications and petitions, as well as the “ineffectiveness of traditional liaison and advocacy methods.” From this, Lisa notes an upswing in litigation both in response to new policies as well as increasingly slow processing times.

Another interesting trend is the utilization of an E-2 treaty investment visa being paired with a citizenship-by-investment program in third countries. The E-2 visa is only available to citizens of countries with which the U.S. has specific treaties. However, there are a handful of treaty countries that also have their own citizenship-by-investment programs. Such programs allow a citizen from a non-treaty country to invest in citizenship with a treaty country, and then obtain an E-2 visa to enter and work in the U.S., thus circumventing many obstacles like quotas and processing delays.

Lisa concludes with noting that, in the present immigration climate, it is increasingly difficult to secure employment for highly skilled foreign nationals. When considering legal counsel for employment based immigration services, it is important to work with a firm that has attorneys who have the skills and experience with complex immigration problems, and who have a process and track record of success. 

Contact Klasko Immigration Law Partners for a consultation.