Risks and rewards of immigration reform august 27, 2013

Rewards and Risks
of Immigration
Reform?
Eliot Norman
Williams Mullen
Partner – International
enorman@williamsmullen.com
Ronald Adler
President-CEO
Laurdan Associates, Inc.
radler@laurdan.com

Polling Question #1
#1: Does your company sponsor
foreign employees for Green Cards or
temporary work visas?
> Yes, we regularly use these programs
> Yes, we occasionally use these programs
> No, but we would like to know more
> No or not sure

2

Polling Question #2
#2 Does your company transfer
personnel between U.S. Operations
and your overseas offices?
> Yes
> No

3

Polling Question # 3
#3 Does your company use E-Verify?
> Yes
> No

4

It starts with the Politics
> The Politics
> Ends up with the Practical
>And then gets complicated, including
– unintended or intended consequences of
trying to reform a broken system:
– impact on recruitment and retention of
global talent
– increased enforcement against
employers, large & small

5

Table of Contents:
I: It Starts With the Politics : The First 6 months
Jan-June 2013 – Slide 6
II: The Potential Impact on Your Company – Slide 28
III : Substantive Changes to Business Visas - Slide 38
IV: The Impact on Companies: Problems or Improvements
for L-1Bs and H-1Bs – Slide 43
V: Impact on Global Businesses: Temporary Business Visas:
What’s New Under Immigration Reform? – Slide 54
VI: Impact on Companies: Business Green Cards – Slide 59
VII: Impact on Companies: Miscellaneous Reform Provisions
– Slide 68
VII: Worksite Enforcement – Slide 71
VII: Immigration Issues under REFORM: Implications for
HR Professionals – Slide 74
VIII: The House of Representatives etc. – Slide 97
IX: Last Thoughts? - Slide 113
7

Let’s Review First 6 months

The day after the President cites
immigration reform among policy
priorities in his inaugural address,
immigration advocacy groups urge
Washington to act.
Reaction?
Where was Obama?
OFF TO ROCKY START
8

April 2013: Foreign Terrorists
Attack
>Boy, 8, one of 3 killed in bombings at
Boston Marathon; 176 wounded
April 18, 2013
>Bombing Manhunt for Chechen
Brothers Shuts down City, 700,00
persons locked in homes

12

Gang of Eight :

April 2013: 8 Senators Say Boston No Excuse To Nix
Immigration Deal | Fox News ...
14

Why the Bipartisan effort?

15

SO Republicans Strike “The
Grand Bargain”
>Path to citizenship for 11 million illegal
immigrants “OK BUT MAKE IT TOUGH AND
LONG”: and
>In return : GIVE US BORDER SECURITY.

19

How Tough?
Road to citizenship: 13 years

20

Maybe this approach solves
this Dilemma?

21

Border Security: became the
key issue
> The bill’s largest, and perhaps most critical,
change came in a package that promised to
substantially bolster security along the nation’s
southern border. The proposal, by Senators Bob
Corker of Tennessee and John Hoeven of North
Dakota, both Republicans, would devote about
$40 billion over the next decade to border
enforcement measures, including adding 20,000
Border Patrol agents and 700 miles of fencing
along the southern border.
> The amendment, which passed with broad
bipartisan support, helped bring along more
than a dozen reluctant Republicans on S. 744
24

So where were we at the
end of June 2013?
> Gang of Eight
Working away
From April to June
> Absent from Scene: President Obama
> Judiciary Committee vote 15-5
> Vote against Filibuster 82-17
> 300 Amendments: nearly all defeated
> CBO report: Deficit reduction $300 billion
> Final Vote June 27. Comprehensive Legislation
was becoming a reality?
25

Victory? 68-32 in the Senate
>WASHINGTON — Here’s how the Press
Reported it:
“The Senate on Thursday (June 27) approved
the most significant overhaul of the nation’s
immigration laws in a generation with broad
support generated by a sense among leading
Republicans that the party needed to join with
Democrats to remove a wedge between
Republicans and Hispanic voters.”

26

What did the Senate Actually
Approve?
>Like ObamaCare, got to ask: what’s in
this Blue Box?

27

II: The Potential Impact on
Your Company?
RULE OF UNINTENDED
CONSEQUENCES: BUTTERFLY
EFFECT

28

2 Bargains in S. 744
The Grand Bargain (with huge debate)
– Path to citizenship for 11 million illegal
immigrants in return for
– Sealing the Border:
The Small Bargain (with little debate)
> acceleration and expansion of all sorts of business
visas: goal of helping U.S. businesses recruit & retain
global talent. But at a cost… and
> Worksite Enforcement inside the USA: Mandatory EVerify
Both could have a profound impact on use of human
capital by U.S. companies
29

Foreign Components/Engineering

31

The New Southeast U.S.
Aerospace Cluster
> Mobile, AL (Airbus)
> Savannah, GA (Gulfstream-General
Dynamics)
> Charleston, SC (Boeing)
> Greensboro, NC (Hondajet)
> Durham, NC (GE Aviation)
> Richmond/Petersburg, VA (Rolls-Royce)
> Melbourne, Fla (Embraer)

32

What the Bill did not do:
Attention!
Homeland Security remains in
charge of immigration to the USA

33

Did nothing about Multiple
Government Agencies
> WSJ article: the slowdown
> attitude of CBP
> Split of Authority: State Dept; Labor;
ICE; CBP; and USCIS
>Can the agencies keep up
with the demand?
> 50 million and counting

34

Embassy of the United States of America
Visa Branch
2, Avenue Gabriel
75008 Paris, France
VIA E-MAIL TRANSMISSION
Date:
12-Jun-13
Mr. Eliot Norman
Attorney at Law
William Mullen (Richmond)
200 South 10th Street, Suite 1600
Richmond VA 23219
Reference number: 2013163 843 1
Treaty Investor/Treaty Trader
Treaty Investor/Treaty Trader
Dear Mr. Norman:
As you are aware, as part of the visa application process, an interview at the
embassy is required for visa applicants from age 14 through 79.
As a consequence, Mr. and his spouse have been scheduled to
come for an interview on 15-Jul-2013 at 01:30 PM.
They will meet our Treaty Visa Officer.
In a few days, using the above-noted reference number you may view the status of
this application on our website at http://france.usembassy.gov Pending visas “Treaty
Trader Investor visas.”
Should you have any questions about this application or need to reschedule the
appointment, please do not hesitate to contact us by e-mail directly to
parisev@state.gov to ensure rapid processing.
Sincerely,
E Visa Unit
Non Immigrant Visa Branch
American Embassy Paris

36

State Dept. Reforms
>Why now? Overload on system
>Eliminate visa interviews?
>Revalidate visas without leaving the USA?
>Time limits on adjudication of visas, and
waiting times for visa interviews?
>Retreat from DHS mentality: screen everyone

37

III: SUMMARY of
Substantive Changes to
Business Visas

38

Titles II & IV to Senate Bill
744: Substantive Changes to
Business Visas

>New Rules for Business Visitors
>Liberalization of Quotas for H-1Bs
>New Types of Visas: Business lobby has
intervened successfully for multinationals ,
U.S. and foreign
>Relief for Backlogs in Green Cards (Title II)
> STEM Graduates = automatic Green Cards
>IMPACT: Will affect Visa Choices
>Will affect short-term and long term strategies

39

This is where is all starts

40

The Visa Pyramid

GREEN CARDS
L-1A/L-1B,
E1/E2 Investors/
Treaty Traders

TN, H-1B/O-1
B-1/ F-1/J-1/H-3, H-2B
90 Day
ESTA Visa
Waivers
B-1 Business
Visitors
(B/2) (tourists)

41

EB-1 Multinational Managers/Executives & EB-1
Extraordinary Ability and Outstanding Researchers;
EB2/3 PERM Labor Certifications for professionals, skilled
workers leading to Green Cards;
EB2 Green Cards for National Interest Waivers,
FAMILY SPONSORSHIP (marriage to U.S. Citizen or, Green
Card Holder; Diversity Lottery. EB-5: $500,000 Investors
EXECUTIVES, MANAGERS, Specialists and EssentialSkills Employees for U.S. Offices of International
Companies

PROFESSIONALS; Extraordinary Ability
Scholars & Scientists
TRAINEES & FOREIGN STUDENTS
Research Scholars & Specialists;
Temporary workers , VIE , Interns.
BUSINESS VISITORS:
Negotiate Contracts, Consult;
Trainees, Install Equipment
if Purchased Overseas; Visa Waiver
B-1 au lieu de H-1B: 6 month project
requiring professional services.

Summary: the Big Changes
>
>
>
>
>
>
>
>

42

Current Choices
B-1
ESTA Visa Waiver
E-2/E-1
H-1B
L-1A or L-1B
TN
Green Cards
– EB1
– EB2 and EB3
– EB 5

>
>
>
>
>
>
>
>

Reform
B-1
ESTA Visa Waiver
E-2/E-1
H-1B
L-1A or L-1B
TN
Green Cards**
– EB1
– EB2 and EB3
– EB5

IV: The Impact on Companies
Hiring Global Talent :
Problems or Improvements
for H-1Bs? And L-1Bs?

43

H-1B Visas for Specialty
Occupations:
> A very practical visa when it works
> The Role of DOL
> Procedures: the LCA
> The CAP or Quotas: The major problem area
> 65,000 plus 20,000 for graduates of U.S. Universities
holding advanced degrees (M.A. M.S. Ph.D) per year.
– 2011
– 2012
– 2013
> Gov. Fees: $2325 plus $1225 premium + $1800 for
lawyers
44

H-1B Visas for Specialty
Occupations: The Reform
Advantages :
> Quotas or Caps going from 65,000 a year to between
115,000 and 180,000 based upon demand and usage
> + STEM advanced degree graduates: 25,000 exempt
from quota
> Spouses can work on the H-4
> However, a political compromise adds costs/burdens

45

H-1B Changes under Reform
>Disadvantages : Changes to Protect U.S.
Workers
> New Fees: $1000 LCA fee; and $1250 to $2500 CIR Trust Funds Fee
> Must Advertise position on DOL Website for 30 days
> 4 level wage structure changes to 3 levels, eliminating Level 1
(increase in salaries by average of $18,000 or 20%)
> For Dependent H-1B Employers: must pay at Level 2 prevailing
wages= 30% + increase in salaries.
> Adds attestation that hiring is not to displace U.S. worker for H-1B for
certain employers, including public school systems
> $500 surcharge for H-1B workers performing outsourcing or contract
services
> H-1B dependent employers: must show offered job to U.S. workers
before filing for H-1B
> Expected Result: Enhanced DOL complaint enforcement, Audits .
Overall Results: Mixed at best
46

Current Choices: Use of L1Bs, L-1As, H-1Bs, E-2s for
Intra-Company Transfers
X&Z Aerosupply SA
Toulouse , France
Managers, Executives
Software Developers
Electrical Engineers
Project Managers
and

Composites
Engineers

X&Z Aerosupply, Ltd.
Bucharest, Romania

47

Specialists

X&Z Aerosupply , Inc.
Mobile, Alabama USA
(AIRBUS VILLAGE)

L-1B and L-1As (IntraCompany Transfers)
The Current Procedure
advantages,
criteria and procedures
case examples : New office L-1
Blanket Procedures streamlined
Problem Areas:
% Requests for Evidence ?
« Specialized Knowledge »
Working at Client Sites
Fees: $1225 plus $325 Plus $500.
OR
• Blanket Fees: $500
>
•
•
•
•
•
•
•
•

48

Under the Reform
– Increased Fees $500 for
STEM Education/Training
– Work at client sites to be
prohibited, no outsourcing
– Specialized knowledge
standards will it be
impractical?
– New standards: New Office
L-1s
– DOL/DHS Audits
– New class of Dependent H1B/L-1 employers with fees
of $5000 to $10,000 per
worker

Strategic Solutions under Reform

> Treaty or Consular Visas instead of H-1Bs and
L-1Bs.
> E-2s « essential skills » & executives/sr.
Managers
> TNs : systems analysts, eng techs; mngt
consultants as independent contractors.
> If an L-1, must be Blanket
> actually a good strategy today given
restrictive interpretation of H1-Bs and L-1Bs.

49

Impact on our Aerospace Supplier

50

Case Illustration Under Immigration Reform:
USE NAFTA TN or E-2, even B-1(international
contracts eXception)
(Avoid L-1Bs and H-1Bs)
X&Z Aerosupply SA
Toulouse , France
Software Developers

Project Managers
and

Manufacturing
Managers &
Engineers
X&Z Composites
Manufacturing
Monterey, Mexico

52

X&Z Services
Engineering , SA
Montréal, Québec
Engineers

Specialists

Mobile, Alabama USA
(AIRBUS VILLAGE)

The Reform and the Treaty Visas
> Summary: Reform either does not affect or actually
encourages Treaty Visas: Examples
E-2 /E-1 and NAFTA TN (Mexico/Canada)
Availability of Accelerated E-1/E-2 Processing
NAFTA & Free Trade Agreements
Chile, Australia and Singapore: Special H-1Bs or E-3s
under Fast-Track FTAs (Free Trade Agreements)
– New E-3 for Ireland; E-4s of 5000 per country; E-5 for
South Korea; E-6 for Africa and Caribbean
> Superiority of Treaty Visas over H-1Bs and L-1Bs
> Where possible, adopt Global Strategies to avoid
USCIS/DOL –based visas.
– Use Fast-Track E-2s; Blanket L-1s, B-1s, TN, other Treaty
Visas
–
–
–
–

53

V: Impact on Companies:
Temporary Business Visas:
What’s New under
Immigration Reform?

54

Visas: Practical Solutions for
Business Visitors
> Existing Reforms in use of B-1 type visas
– Visa Waivers (ESTA);
– Can work under B-1 in support of international
supply agreement: installation, warranty work
if part of contract etc.
– B-1 in lieu of H-1B (example: design engineers)
• professional position
• project for less than 6 months
• compensation: from overseas
• Case examples

55

What’s New?
>B-1 Multinational Managers/Executives:
– Can come for up to 180 days to oversee
U.S. operations, participate in leadership
training, Compensation from abroad.
>Z visa: benefits airlines, cruise lines, other
transportation companies, ex. MRO facilities,
repair or warranty work on foreign
equipment for up to 180 days.
>Parallels U.S. State Department Initiative: B-1
in lieu of H-1B: up to 180 days for
professionals working on short-term projects
56

What else is New?:
Nonimmigrants
>W Visas: Sponsorship of low and middleskilled positions
– example: assemblers, welders for our
aerospace company
– 20,000 to 75,000, up to even 200,000 per
year?
– Eliminates proving seasonal need
– Existing H-2B program, just not workable
anymore
>Agricultural Workers W-1 and W-2
57

What’s New ?
>X visas: rationale?
– For Start-ups, foreign grads of U.S.
universities or direct applicants from
abroad
– X Visa for 3 years:
– Criteria
• Attract Venture Capital of $100,000
from qulified investors or
• Generate at least $250,000 in revenues
or
• Create at least 3 jobs for U.S. workers.
58

VI: Impact on U.S.
COMPANIES:
Business Green Cards

59

Existing Process: THE PROBLEM.PERM hurdle.
Timing: All 3 steps: 10 years + for EB3 from India
61

Demystifying green Cards
> EB1: multinational managers/executives,
extraordinary ability, outstanding researchers
>EB2 : M.A. M.S. PhD. 3 steps with PERM
> EB3: B.S. B.A. or skilled workers (2 yrs. Exp.)
and unskilled (3 steps with PERM)
>See Green PDF Handout
>Changes under Reform System ?
> Avoids DOL PERM
> Accelerates process by eliminating quota
backlogs (problem of priority dates) or
granting broad exemptions
62

What’s New? Instant or
Accelerated Green Cards
> Recent STEM foreign graduates from U.S. Universities
with advanced degrees plus PhDs in any field

>
>
>
>

63

– exempt from numerical quotas
– NO PERM (Labor Certification)
– employable in 90 days under Green Card Application
– compare with 2-10 year PERM to GC process.
Multinational Managers and Executives can self-petition; so can
Ph.Ds and NIW
EB-1 Multinational Managers/Executives still a strong option ;
exempt from quotas
Premium Processing for all employment cases
Reference: PDF Handout: G.C. Chart

Green Card Quotas and
Priority System
What if my candidate is not quota exempt?
> Reform eliminated per country quota limitation of
7% (problem for India, China, etc.)
> Family members no longer to be counted AND
> 40% for Graduate Degrees, EB-2 or higher
> 40% for EB3 (B.S. or B.A. degree or skilled workers
and unskilled workers if visas available)
> 10% Entrepreneurs and investors
> 10% special immigrants

64

What’s New: Employment Based
Green Cards
>Acceleration of Green Card issuance:
– For EB3 India: from 5-10 years to 1-2years

>New Strategy: Think Green Cards First,
temporary visas second for certain types
of employees based upon educational
qualifications (STEM or PhD)
> Put the Visa Pyramid upside down

Green Cards : First

65

Practical Case under Use of
Green Cards for IntraCompany Transfers
X&Z Aerosupply SA
Toulouse , France
Software Developers
(U.S. Educated )
Project Managers
and

Composites
Engineers and
Assemblers

X&Z Aerosupply, Ltd.
Bucharest, Romania

66

Specialists

Mobile, Alabama USA
(AIRBUS VILLAGE)

What’s New: « Invest »Green Cards:
Reform not just about Multiatnionals
> Recognition of immigrant origins of Silicon Valley
and Fortune 500
> One Goal: Capture STEM grads
> EB-6 Entrepreneur Green Cards 10% of total:
> 2 years as nonimmigrant
> Raise at least $500,000 in Venture Capital or
> Generate $750,000 in revenues
EB-5 $500,000 Investment Green Card made
permanent
– can be source of financing for U.S. projects
– Investors sold minority interest, typically limited
partnership unit
67

VII: RISKS of Immigration
Reform: worksite
Enforcement/Audits
(the other part of the bargain)

68

Internal Security: Worksite
Inspections and

69

Senate Timetable: E Verify
> 1 year: companies part of « critical
infrastructure »
> 2 years 5000+ employees
> 3 years 500+
> 4 years all other employers
> 5 years all Social Security Cards: Tamper
proof
> strengthen antidiscrimination measures and
employee’s right to sue
> no prohibition on copycat state laws
70

Worksite Enforcement: Why Now?
> Audits, particularly H-1Bs under Reform
> Fines, criminal enforcement will continue
> 1099s, IRS et ICE as 11 million come out of the
shadows
> 20% or more of 11 million entered as visitors and
overstayed and will show up to work for you. Border
security is not whole answer. More will enter legally
and seek to work illegally. ICE will come to your
worksite.
> “Photo tools” posted in USCIS database
> I-9s and their completion: still a challenge (See pdf)
> No liability if act in good faith based on EVS

72

Compliance Headaches or
worse
> Requires systematic approach to Compliance

73

#23195736

Presented by
Ronald Adler
President-CEO

© 2012 Laurdan Associates, Inc. All Rights Reserved

74



Ronald Adler is president-CEO of Laurdan Associates, Inc., a
veteran-owned human resource management consulting firm
specializing in HR audits, employment practices liability risk
assessments, HR metrics, strategic HR, and unemployment
insurance issues. Mr. Adler is the co-creator of ELLA®, the
Employment-Labor Law Audit™, the nation’s leading HR
auditing process. Mr. Adler is an adjunct professor at
Villanova University where he teaches graduate courses in HR
auditing and HR management. Mr. Adler currently serves as a
subject matter and consulting expert to SHRM and serves on
taskforces developing professional standards in performance
management and human capital measurement.

75







“Immigration” will remain a hot bottom issue for
workplace audits and work site enforcement
In a meeting with operations managers, recent audits
by ICE of your organization’s competitors raised
questions about your organization’s vulnerability.
What answer do you give? What proactive
recommendations do you have for your managers?


76



Does your organization have a policy addressing
immigration issues?
◦ Yes, we regularly assess our policy to ensure it is aligned
business objectives and complies with all federal and
state laws
◦ Yes, but we haven’t reviewed our policy in the last two
years
◦ No.
◦ Not sure

© 2012 Laurdan Associates, Inc. All
Rights Reserved

77

President Obama in 2009:“We can't continue with

a
broken immigration system. It's not good for anybody.
It's not good for American workers. [We need to be]
taking seriously the violation of companies. That’s
again something we can start doing administratively.”
Immigration Reform in 2013: Employer Worksite
Enforcement is at the heart of the legislation affecting
businesses
President Obama at a Press Conference on April 29, 2009

78

In the world-is-flat economy, the hallmark of
successful organizations is their ability to
respond to and satisfy an increasingly diverse
marketplace…this requires an increasingly
diverse work force.


79

“The human capital risk is the biggest threat facing
organizations worldwide…it is also one of the least
effectively managed”
(businessinsurance.com, June 1, 2007)


80

An organization’s immigration policy and
practices can have a positive or negative effect
on its ability to attract and retain top
performers, key employees, and critical skills.


81

“ We need to place renewed focus on employers to
ensure that they are playing by the rules…This focus
should include more routine use of civil
sanctions…and we should continue to develop
programs such as E-Verify to encourage compliance.”
John Morton, the new Director of ICE, at his Senate
Confirmation Hearings, April 23, 2009
REFORM: continues that approach.

82



“[E-Verify is] a cornerstone of workplace
enforcement across the country…[and] is an essential
tool for employers to maintain legal compliance.”
Testimony by DHS Secretary Napolitano at congressional
hearings in May 2009


83



“In F/Y 2011, employers nationwide were ordered to
pay nearly $10.5 million in civil fines for hiring
violations. In addition, criminal charges were filed
against a record-breaking 221 owners, employers,
managers and/or supervisors – up from 196 in fiscal
year 2010.”



ICE arrests criminal aliens following employment
verification audits


84







St. Louis industrial supply company sentenced for
employing illegal aliens (Forfeiture of $150,000 and
2011Toyoda Highlander and one year of probation)
Wash. herb grower fined $1 million for knowingly
employing illegal aliens (Five years probation)
Owners of Bay Area restaurant chain sentenced for
tax violations, hiring illegal aliens ($2.2 million in
restitution and 41months in jail)


85









With or without REFORM, increased governmental
emphasis and audit activities
◦ Increasing audit activities by ICE, DOL, IRS,
EEOC, OFCCP
Expanding state requirements (20 states require the
use of E-Verify)
Economic conditions
Changing regulatory perspective
Social and political pressure


86



Does your organization assess the risks and liabilities
associated with immigration related issues?
◦
◦
◦
◦
◦

Yes, we regularly assess the risks and liabilities
Yes, we occasionally assess the risks and liabilities
No
Not sure
What risks and liabilities?

© 2012 Laurdan Associates, Inc. All
Rights Reserved

87












Immigration policies and procedures have a negative
effect or positive effect on talent management
Immigration policies and procedures expose the
organization to discrimination claims
Immigration policies and procedures expose the
organization to negligent hiring claims for hiring
illegal aliens
Payroll policies misclassify independent contractors
Immigration policies and procedures result in
criminal prosecution of management for violating the
immigration laws

88





Immigration policies are not aligned with business
objectives and strategies
Immigration policies and procedures have a material
effect on revenue and the bottom line
1) Fines and penalties (substantial)
2) Debarment, non-payment, asset forfeiture
3) Loss of business license
4) Higher insurance costs


89



Immigration Reform and Control Act of 1986 (IRCA)
◦ Purpose: To control illegal immigration by imposing
sanctions against employers that knowingly employ aliens
that are not authorized to work in the United States
◦ Requires employers to document each employee’s
employment eligibility
◦ Prohibits the knowing employment and retention of an
unauthorized alien
◦ Imposes sanctions again employers that discriminate
against workers on the basis of national origin, citizenship
status, or submitted verification documents



REFORM: Continues and further emphasizes
those obligations

90



Form I-9, Employment Eligibility Verification
◦ Purpose: All U.S. employers must complete
and retain a Form I-9 for each individual
they hire for employment in the United
States. This includes citizens and noncitizens.
On the form, the employer must examine the
employment eligibility and identity
document(s) an employee presents to
determine whether the document(s)
reasonably appear to be genuine and relate to
the individual and record the document
information on the Form I-9.

91








Other federal requirements: H-1Bs
◦ Pay the prevailing wage
◦ Obtain Labor Condition Application approval
◦ Create a Public Access File
REFORM: new Posting and Attestation
Requirements for H-1Bs
DOL enforcement and private litigation over
payment of prevailing wages
DOL annual enforcement audits


92



Anti-Discrimination Notice:
“It is illegal to discriminate against any individual
(other than an alien not authorized to work in the
United States) in hiring, discharging, or
recruiting…because of that individual’s national
origin or citizenship status. It is illegal to discriminate
against work-authorized individuals…The refusal to
hire an individual because the documents presented
have a future expiration date may also constitute
illegal discrimination.”


93





E-Verify: An internet-based compliance procedure
that helps ensure the work authorization of an
individual by checking the individual’s employment
eligibility against DHS and SSA data bases.
HR Audit Procedures


94

1.
2.
3.
4.

5.

The organization has developed immigration
policies and practices
Immigration policies are aligned with business and
talent management objectives
Immigration policies and practices ensure
compliance
Immigration related processes produce reports on
the achievement of immigration issue goals
Management monitors the organization’s
immigration issues processes


95

6.
7.

8.

9.

Management reviews immigration issue metrics
The organization conducts regular audits of I-9,
E-Verify, H-1B procedures and forms and other
immigration visas and documents
The organization conducts tests to ensure that
immigration related documents are secure,
properly retained, and properly destroyed
The organization conducts internal audits to
ensure that immigration & visa policies and
procedures are being followed

96

VIII: Next steps and
Legislative Strategies
(in the House of Representatives)

97

The House of Representatives
> What happens next?
> House of Representatives
> Future of the House « Gang of Seven »?
>Bipartisan Bill =Comprehensive Reform’ or
Series of Separate Bills without Path to
Citizenship for all 11 million?
>Conference Committee?
>Key Players?

99

HOUSE Legal Workforce
Enforcement Act :
> Key Components of the Legal Workforce Act:
Repeals I-9 System in 36 months. Repeals the current paperbased I-9 system and replaces it with a completely electronic
work eligibility check, bringing the process into the 21st
century. Repeals 8 USC 1324a.
> Gradual Phase-In: Phases-in mandatory E-Verify participation
for new hires in six month increments beginning on the date of
enactment. Within six months of enactment, businesses having
more than 10,000 employees are required to use EVerify. Within 12 months of enactment, businesses having 500
to 9,999 employees are required to use E-Verify. Eighteen
months after enactment, businesses having 20 to 499
employees must use E-Verify. And 24 months after enactment,
all businesses having 1 to 19 employees must use E-Verify.
102

Legal Workforce Enforcement
Act
> Agriculture: Requires that employees performing “agricultural
labor or services” are only subject to an E-Verify check within
24 months of the date of enactment.
> States as Partners: Preempts duplicative state laws mandating
E-Verify use but retains the ability of states and localities to
condition business licenses on the requirement that the
employer use E-Verify in good faith under the federal law. In
addition, the bill allows states to enforce the federal E-Verify
requirement and incentivizes them to do so by letting them
keep the fines they recover from employers who violate the
law.

103

House: Legal Workforce
Enforcement Act
> Protects Against Identity Theft: The bill allows individuals to
lock their Social Security number (SSN) so that it can’t be used
by another person to get a job. It also allows parents or legal
guardians to lock the SSN of their minor child. And if a SSN
shows unusual multiple use, the Department of Homeland
Security is required to lock the SSN and alert the owner that
their personal information may have been compromised.
> Safe Harbor: Grants employers a safe harbor from prosecution
if they use the E-Verify program in good faith, and through no
fault of theirs, receive an incorrect eligibility confirmation
> 22-9 in House Judiciary Committee

104

New House Legislation
>House Judiciary Committee Approves HighSkilled Immigration Bill
>Washington, D.C. – The House Judiciary
Committee today approved the Supplying
Knowledge Based Immigrants and Lifting
Levels of STEM Visas Act (H.R. 2131), also
known as the SKILLS Visa Act,in a vote of 2014.

105

House Skills Visa Act
> This bill provides American employers with access to
the world’s best talent by allocating green cards to
foreign graduates of U.S. universities with advanced
degrees in science, technology, engineering, and
math (STEM) fields, increasing H-1B visas, and
repealing the employment-based per-country cap.
> The bill facilitates job creation by establishing a new
entrepreneur visa program and strengthening the
investor visa program. The bill accomplishes these
changes to our immigration system by replacing
nonessential immigration programs with those that
better meet our country’s interests. The bill also
contains a market-based approach to protect
American workers
107

HOUSE SKILLS VISA ACT
> Rep. Issa: “The Committee’s approval of the SKILLS Visa Act
furthers an effort to ensure that immigration reform benefits
our economy and the creation of American jobs. America is
already home to many of the world’s best and brightest
individuals. The SKILLS Visa Act is a win-win for the United
States. It allows immigrants who graduate from American
universities with advanced degrees in STEM fields to remain
here and use their talents to make this country a better place. It
also helps to provide workers in many highly-skilled technical
areas where our nation is currently experiencing shortages. This
bill will help to grow our economy and help us to retain the
best and brightest individuals. “

108

House SKILLS VISA ACT
> Key Components of the SKILLS Visa Act: Parallel those in the S.
744
> Increases Green Cards for STEM Grads: The SKILLS Visa Act
allocates up to 55,000 green cards a year for employers to
petition for foreign graduates of U.S. universities with
advanced degrees in STEM fields.
> Increases and Strengthens H-1B Visa Program: The SKILLS Visa
Act increases the H-1B visa cap for high-skilled workers to
155,000 and increases the special pool of visas for foreign
advanced graduates of U.S. universities to 40,000. The bill
contains enhanced anti-fraud provisions and allows H-1B
spouses to work.
> Market-Based Approach to Protect American Workers: The bill
improves the prevailing wage calculation to better protect
American workers and extends the prevailing wage protection
to similar visa programs.

109

> Provides Entrepreneur Visas: The bill allocates up to
10,000 green cards a year for alien entrepreneurs
who can attract investment from venture-capital
firms to establish businesses that will create at least
five jobs or have already created five jobs over 10
years through the E-2 treaty investor program.
> Strengthens Investor Visa Program: The bill
strengthens the investor visa green card program by
making the regional center pilot project permanent,
indexing investment requirements for inflation, and
adding anti-fraud protections.

110

> Eliminates Arbitrary Caps: The bill eliminates the
employment-based green card per-country cap,
allowing American employers to have access to the best
talent.
> Keeps Families Together: The bill allocates an additional
25,000 green cards a year to the spouses and minor
children of permanent residents. It also raises the
family-sponsored per-country cap.
> Makes Immigration System Smarter: The bill repeals the
diversity lottery green card program, which is a magnet
for fraud and poses a national security threat.
> More information about the bill:
http://issa.house.gov/skills/

111

August:
Progress?
Future? 2013 or 2015?
House
Senate
Administrative Action whether
Comprehensive REFORM
Passes or Fails or passes piecemeal.
> Chuck Schumer: “OK with piecemeal
immigration approach”
> Rep. Goodlatte: holds the keys?
>
>
>
>
>

112

Guiding Principles
> Whatever the outcome of
REFORM, make individualized
choices when applying for
visas based upon each case’s
circumstances
> Avoid just repeating what you
did last year. What worked
last year will not necessarily
keep working.
> Agencies « de facto: » are
following « cues » from
REFORM efforts:
114

Final Considerations
1.
2.

Flexibility
Big surprise: make early and effective use of Green Cards to
bypass H-1B and L-1 headaches and complications
3. E-2 accelerated visa programs (if your company meets
criteria) : for companies with foreign ownership
4. Stay with Treaty or State Dept. Visas over Congressional
Visas: TN, E-2, B-1, J-1, Blanket L-1s
5.
Portability: employment agreements will be of added
importance (confidentiality, non-compete)
6. Consider more use possible of short term visas for productive
work (B-1 in lieu of H-1B)
7. Use of Green Cards will accelerate for the hiring foreign
talent coming out of U.S. universities
8 . Expect audits and investigations, now is the time to
have HR risk compliance procedures in place

115

Under Comprehensive or
Piecemeal Immigration Reform:
Strategic Planning Will Be The
Priority

118

Eliot Norman Bio
Eliot Norman has focused his practice on immigration law and advising on
inbound U.S. investment projects from Europe and Asia since 1986. He
regularly advises technology, staffing, manufacturing, and multinational
corporations on recruiting and retaining global talent. As a former federal
prosecutor, he also counsels clients on compliance with I-9 rules and
Homeland Security enforcement measures. Mr. Norman also enjoys
helping movie producers move cast and crew around the world.
Eliot Norman speaks French fluently and works closely with large and
small companies from Quebec and France. He is a graduate of Yale
College, Boston College Law School and earned a Certificat from the
Institut d’etudes politiques, Paris, France.
With approximately 250 attorneys and 10 offices in North Carolina,
Virginia and Washington, D.C., Williams Mullen professionals deliver
innovative solutions to support its clients’ diverse business activities
throughout the United States. Close working relationship with clients has
been the foundation of its progressive approach to law practice since the
firm’s founding in 1909. Williams Mullen regularly advises corporate
clients on all aspects of establishing and expanding their operations in the
United States, including immigration, customs, company formation,
Export Controls and related issues.

119

Questions?
Eliot Norman
enorman@williamsmullen.com
Williams Mullen
1666 K Street NW Suite 1200
Washington DC 20006
Direct Dial: 804.420.6482
www.williamsmullen.com

Ronald Adler
President-CEO
2305 Glenmore Terrace
Rockville, MD 20850
+1 301.762.5794
+1 240.238.2807 (fax)
radler@laurdan.com
www.laurdan.com
www.ellaontheweb.com

120

Risks and rewards of immigration reform august 27, 2013

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