FW moderates a discussion looking at corporate immigration between Jonathan Goldsworthy, a senior associate at Bird & Bird LLP, Deborah Marlowe, a partner at Fragomen, Del Rey, Bernsen & Loewy, LLP, and Maria Jockel, a partner at Holding Redlich Lawyers.
FW: Could you highlight some of the key points of corporate immigration legislation, and what impact it is having on business operations?
Goldsworthy: In 2008 the UK Government completed the roll out of its Points-Based Immigration System (PBS) which saw over 80 routes of entry replaced with a five-tiered system. Successive governments have since been able to amend the different tiers of the PBS in order to manage and respond to trends in the UK labour market. A key factor in a company's current ability to sponsor non-European nationals is the cap on the number of ‘Certificates of Sponsorship’ which can be issued to migrant workers who want to come to the UK from overseas to start work, which is currently set at 20,700 per year. Further, current procedural requirements such as a Resident Labour Market Test, which requires advertising an open role for 28 days in approved medium, and the ‘Tier 2 Cooling Off Period’, which restricts certain migrants from returning to the UK for 12 months, can restrict a company's ability to recruit migrant workers.
Marlowe: The proposed legislation introduced in the US Senate in April would substantially reduce permanent residence – ‘green card’ – backlogs and would increase the quota for H-1B visas used for high skilled foreign national professionals. Although these would be welcome changes, troubling provisions impacting the H-1B program are also included such as the imposition of above-market wages, prohibitions against displacing US workers, restrictions on outsourcing H-1B workers, and mandated US worker recruitment. The L-1 –intra-company transfer – category would also be negatively affected through limitations on sponsorships and outplacement of L-1 workers, in addition to higher government fees. Employers that depend significantly on H-1B and L-1 workers, as well as other companies that rely on contract services supplied by such employers, are most at risk if the legislation passes in its current form. However, the impact on each employer should be assessed individually.
Jockel: Australia’s Subclass 457 Temporary Work (Skilled) Visa Program (457 Visa Program) enables Australian and overseas businesses to sponsor skilled overseas workers to fill specified skilled occupations on a temporary basis and to meet targeted labour force needs. There are three main steps in the approval process under the 457 Visa Program, namely sponsorship application, nomination application and visa application. The Subclass 457 visa can be granted for a period of up to four years to professionals, managers, paraprofessionals and trades positions. While Australia requires foreign talent and is experiencing a shortage of skills in various economic sectors, the government has announced reforms which aim to place the interests of Australian workers first. The new reforms, which will commence on 1 July 2013, will further enhance the training benchmark requirements, enable the Department of Immigration and Citizenship to more readily refuse 457 nomination applications, increase the market salary exemption threshold, remove the English language exemptions for certain positions and enhance its monitoring and enforcement powers to ensure that the working conditions of overseas workers meet Australian standards, and that overseas workers are not used to undercut local workers and employment standards.
FW: To what extent have anti-immigration policies in the West impacted the ability of firms to hire, retain and transfer non-domestic staff?
Marlowe: The overall economic downturn in recent years has made US immigration politics more contentious and has further entrenched protectionist sentiments, thereby deterring positive business immigration reform. As a result, US employers have faced challenges in hiring, retaining, and transferring to the US foreign national workers that provide critical expertise needed to remain competitive, particularly in science, technology, engineering and mathematics (STEM) fields. For example, the basic H-1B and green card quotas were set over 20 years ago when only a small percentage of US households had a computer. Even with a quota modification almost 10 years ago, the tremendous economic growth in the technology sector alone has rendered the quotas totally inadequate. Furthermore, it is also undeniable that anti-immigrant policies have influenced the interpretation of regulations in a way that is narrow and frustrates the ability of employers to secure visas for high skilled foreign workers.
Jockel: The Business Council of Australia has criticised the government for its unsubstantiated claims of wide spread abuse of the 457 Visa Program and expressed concern that the governmental reforms are likely to adversely impact business operations and delay decisions to hire non-domestic staff to meet labour force needs. These reforms include an increased emphasis on employing local labour, greater obligations to train Australian staff, and provide greater powers to the government to monitor and enforce compliance of Australian employment standards, and the 457 Visa Program sponsorship obligations. With the government tightening up the laws and extending the investigative powers of the Department of Immigration and Citizenship, and the Fair Work Ombudsman, so the 457 visas are not used to employ overseas workers where local labour is available, it is expected that many firms will delay the hiring and transfer of non-domestic staff unless these are critically required to alleviate skills shortages. Following the rise to 105,600 primary 457 visa holders as of 31 March 2013, there is now an apparent downward trend. In part, this is in response to the patchy economy but it also reflects business confidence in the program.
Goldsworthy: The UK does not have a specific anti-immigration policy, however, the government is seeking to restrict immigration to those it perceives can benefit the UK economy, against a general back-drop to reduce migration generally. Consequently, there are certain elements of the PBS which are designed to place limitations on a company's ability to recruit non-European nationals. However, this does not mean that companies cannot sponsor migrant workers, simply that they must comply with the necessary administrative requirements. In practice, this generally means that companies can fill skilled roles – particularly for those earning £152,100 and over – although there may be a longer lead-in time from offer to start date. Further, there has been little change to the over-arching principle that international organisations can transfer staff into the UK from their overseas offices, although the PBS has reduced the length of time that such inter-company transferees can remain in the UK.
FW: What considerations should companies take into account when non-domestic workers are hired, retained, transferred or even terminated?
Jockel: International recruitment is a strategic part of human resource and workforce planning. It aims to respond to market shortages, increase the stock of human capital, encourage skills transfer and promote innovation in an increasingly global economy. A company’s corporate immigration policy must be aligned with its broader human resource management which aims to recruit the right staff at the right time and with the right skill set. It must also be aligned with the skilling and up-skilling of local staff, and have appropriate termination policies and programs for employees who do not create value for the business. The role of international HR is becoming increasingly important in a globally mobile workforce and economy. Strategic and targeted recruitment of overseas skilled workers is balanced with training and career development of local personnel to meet skill needs. With an increasingly diverse and cross cultural workforce, employers need to develop a road map to hiring and retaining both local and internationally trained workers. This requires placing particular emphasis in integrating overseas workers by creating an inclusive workplace and a unifying vision within the organisation which enables people to connect and best contribute to the business’s needs. This means creating, and participating in a range of initiatives related to hiring, mentoring, promoting and retaining skilled workers, be they local or foreign.
Cross cultural and multi-dimensional approaches are also integral to meeting the human capital requirements of both global and local corporations and in finding and retaining the right workers in an ever changing labour market. In this way, companies can recruit and retain non-domestic workers to meet their skill needs while terminating the employment of those that fail to do so.
Goldsworthy: Where a company is required to sponsor a migrant worker under Tier 2 of the PBS it is essential to factor in how long it will take to comply with any procedural requirements. For example, if a company has to undertake a Resident Labour Market Test and then apply for a ‘restricted Certificate of Sponsorship’ from the government's annual allocation, it can take an extra two to three months before the individual is ready to apply for his or her visa. Sponsors should also be aware that only certain roles which are sufficiently skilled are covered by the Tier 2 arrangements, and that migrant workers must receive a minimum salary depending on their role. A key component of the PBS is that sponsoring employers have much greater responsibility for managing migrant workers so it is important that HR managers, or those with responsibility for immigration, understand what is required of the company and are familiar with current – and frequently amended – guidance and the Sponsor Management System – the online portal through which migrants are managed and the company liaises with the UK Border Agency. It is also important for companies to ensure that individuals have the right to work in the UK. Penalties for employing individuals illegally range from suspension of a company's sponsor licence to unlimited fines or imprisonment. Companies should check the permission for all individuals prior to them commencing employees in order to avoid claims of race discrimination.
Marlowe: US immigration laws touch every aspect of employing foreign national workers from recruitment to termination. These laws, which have become increasingly complex, create significant exposure to liability. For example, there are immigration-related wage and hour rules with record keeping requirements; and penalties for non-compliance range from monetary fines to an employer’s being banned from hiring foreign national workers. The recently proposed US immigration legislation would further increase liability pitfalls. Apart from compliance considerations, employers should also remember that their immigration decisions cannot be made on a piecemeal basis. A single immigration decision on an initial visa for a newly-hired foreign national worker can impact later options for that same worker, as well as restrict options for other workers.
FW: How has the rise of the BRIC nations influenced the corporate immigration landscape? What steps have these nations taken to attract skilled workers from elsewhere?
Marlowe: Over the past 20 years, the US has increasingly become dependent on high skilled foreign workers, particularly those from India and China with STEM degrees. The number of workers from those countries has, under current US immigration laws, resulted in effective backlogs in certain cases of manyyears to obtain US permanent residence, thereby making the US a less attractive option than previously. As global economic power shifts towards the BRIC nations, thereby making those nations more desirable for skilled workers, the US is now competing with those countries for talent. In fact, the US is experiencing a ‘reverse brain drain’ as foreign national skilled workers educated in the US choose to leave the country even after obtaining US permanent residence.
Jockel: With the recent and ongoing significant changes to the global economy, and the continued rise of emerging economic powers, the BRIC nations are refining and developing their corporate immigration policies to meet their economies’ needs. With the changing global economic conditions, and so as to continue to attract international investment, BRIC nations have started to relax the barriers to entry of overseas skilled workers. Where there is strong economic growth, there will be a higher demand for workers in the BRIC nations. With increasing international investment in these countries, an increasing number of business persons and professionals will continue to seek to take advantage of the current economic opportunities. In turn, the corporate immigration policies of BRIC countries will continue to respond to the growth in international investment and labour force needs by facilitating investment and the temporary and permanent entry of highly skilled workers to meet targeted workforce needs.
FW: With regulations and policies varying widely from country to country, how important is it for companies to seek specialised local knowledge to help manage immigration challenges?
Goldsworthy: It is extremely important for companies to fully understand the ever-changing landscape of UK immigration regulations and ensure that recruiters and decision-makers have access to good advice, whether from an internal or external HR or legal resource. Notwithstanding the restrictions on employing migrant workers, there are, generally, ways to recruit non-European nationals if employers are prepared to invest time in working through the procedural requirements. Seeking specialist advice at an early stage should ensure that all options are properly explored and key stakeholders within the business appreciate the time and cost involved in recruiting a particular individual or individuals.
Jockel: Companies need to engage an immigration attorney who can advise on the regulatory framework, ensure the ready approval of visas for non-domestic workers and enable the company to risk manage and to meet the regulatory obligations of sponsoring overseas workers. As Australia’s immigration laws consist of some 3000 pages of law, 16,000 pages of policy guidelines and over 140 visa categories, the immigration attorney is a vital resource who can provide specialised local knowledge, help companies to manage the visa application and related processes, and assist to make these more streamlined and cost effective. The immigration attorney can assist companies to manage the risk of international recruitment by advising on the regulatory framework and assisting companies to meet their obligations in respect of both the visa process and the employment of overseas workers. With significant changes to the global economy, the rise of emerging economic powers and the quest for international investment and highly skilled labour, immigration policies will continue to wax and wain. As an economy contracts, the rules will tighten. Where there is growth and economic prosperity, the rules will loosen.
Marlowe: While adherence to local country immigration laws is imperative, a centralised approach significantly enhances the management of immigration programs. Policies and procedures which are coordinated globally allow companies to set uniform standards, such as a company-wide prohibition on entering a host country on a business visa to conduct activities outside the scope of what that country allows. Central coordination also enables companies to use mobility resources efficiently without duplicating efforts in each country and to monitor global immigration on a holistic basis so business leaders may be advised of trends that could impact decisions, such as areas for investment and expansion. A successful centralised program, though, must be grounded on access to specialised local immigration guidance.
FW: How can new technology play assist companies with their immigration needs?
Marlowe: Technology is crucial to US employers’ ability to stay compliant with the US immigration laws. A basic requirement is that each foreign national worker must have valid US work authorisation. Through technology, an employer can monitor immigration status, for example, to ensure timely filing of extensions, to avoid lapses in international travel authorisation, and to monitor key dates such as final limits on non-immigrant status so that appropriate measures can be taken. Technology is also an invaluable tool for the increasingly large number of recordkeeping and documentation requirements, particularly for I-9 employment verification.
Goldsworthy: The UK's immigration rules are clear and there is not really scope for using technology to bypass any procedural or legislative requirements. However, technology can be used by companies to internationalise its workforce which, in some cases, can reduce the requirement for an individual to hold a UK immigration permission. For example, if an individual is not required to work in the UK on a day-to-day basis, it might be possible to employ him remotely in his country of origin – using email, Skype, and so on, to communicate with the company and its customers – and just travel to the UK for business meetings, subject to the requirements of the business visitor rules. Using technology in this way could also enable an individual to work remotely until a company has completed any procedural or administrative requirements in order that he can hit the ground running once a visa is issued. Technology can also be used by sponsors to assist in complying with their obligations under the PBS such as record keeping and monitoring.
Jockel:Online training courses covering immigration specific and related topics can help both management and employees to understand what the process involves and how to go about it. An internal visa related website can include sections on policies, visa requirements, questionnaires, travel tips and contact information. Having case status information available online is an invaluable tool which can provide immediate answers to employees, managers and the human resource team on when the visa is likely to be approved and when the person can start working. Some immigration software programs provide a web portal interface which individuals can use to retrieve their case details from the database. This can also include reminders on visa expiry dates, online questionnaires and forms and HR data which interfaces with an immigration in-house management system. In turn, this system can interface with the outside immigration attorney so that key information can be transferred, reports generated, details tracked and selected data viewed and accessed on a readily. As the corporate immigration program is part of a strategic human resources issue, aligning immigration and human resource policies, practices and procedures will enable employers to better manage talent in today’s business world.
FW: What general advice would you offer to companies on planning and implementing an effective corporate immigration program?
Jockel: As international recruitment becomes an integral part of global workforce management, companies need to plan and implement an effective corporate immigration program. This program must interface and be aligned with the company’s human resource policies, practices and procedures. Companies need to adopt a best practice checklist for a corporate immigration program which includes putting companies’ immigration policies in writing, engaging an immigration attorney and working collaboratively with the immigration attorney to ensure the timely approval of visas and the transfer of personnel across borders.
Goldsworthy: The key to a successful immigration strategy is to be prepared. Businesses need to accept that there are procedural hurdles and certain immigration restrictions, and factor these into the recruitment process. Educating key stakeholders is important to ensure that expectations are managed accordingly. It is also important to take advice to bridge any gaps in internal knowhow and understand where there are alternative options or ways to expedite the processing of critical applications.
Marlowe: Legal compliance, corporate culture, and market competitiveness are key drivers for developing corporate immigration policy. Regarding legal compliance, a policy should state that the company seeks to remain compliant with all immigration laws and should set forth specific examples, such as timely completion of I-9 employment verification and provision of appropriate employment benefits. In the event of a compliance breach, such a formal policy can help establish the company’s intent and routine practice. Corporate culture impacts, for example, the extent to which a foreign national worker and the worker’s family are supported financially, logistically and emotionally throughout the immigration process. A company’s desire to be competitive in hiring and retaining foreignnational workerswill dictate policies, such as length of employment required before sponsoring a worker for permanent residence. A robust immigration policy is vital even for companies with few or no foreign national workers since all employers are affected by some component of the US immigration laws.
Jonathan Goldsworthy is a senior associate at Bird & Bird LLP. He advises on a broad range of contentious and non-contentious domestic and cross-border employment and business immigration issues as part of organisations' international HR strategies. Mr Goldsworthy's business immigration experience includes advising on the requirements of the Points-Based System and related issues, including immigration warranties, audits and tribunal litigation. He can be contacted on +44 (0)20 7905 6389 or by email: firstname.lastname@example.org.
Deborah Marlowe is a partner at Fragomen, Del Rey, Bernsen & Loewy, LLP and co-manages the Firm's southeastern US practice. Ms Marlowe has more than 25 years of experience providing strategic counsel related to business immigration law, policy and compliance for multinational companies across a broad range of industries. She frequently advises companies on strengthening their immigration programs for both temporary and long-term assignments; creating and maintaining effective immigration risk management programs; and ensuring immigration due diligence for corporate restructuring. Ms Marlowe can be contacted on +1 404 856 5508 or by email: email@example.com.
Maria Jockel is a partner at Holding Redlich Lawyers, and leads the firm’s National Immigration Law Group. She is an accredited Immigration Law Specialist and a Registered Migration Agent. Acknowledged as one of Australia’s leading Immigration Law Specialists, Ms Jockel is listed in 'The International Who’s Who of Corporate Immigration Lawyers' (2010-2012) and is nominated in the Peer Review 'Best Lawyers' (2008-2013). Ms Jockel is a sought after speaker and lecturer and a prolific author on all aspects of immigration and citizenship law. She can be contacted on +61 3 9321 9735 or by email: firstname.lastname@example.org.
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