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Corporate Immigration 2015: Trends

Talk of reform has remained at the forefront of everybody’s minds and corporate immigration lawyers worldwide accept that the sweeping changes they are ever-hopeful for have still not materialised in many cases. With elections in many of the major immigration jurisdictions coming up, the political nature of this area of law has once again reared its head, leaving several practitioners frustrated with piecemeal change – and in many cases, not even that. 

The revival of many economies has led to increased global mobility, putting even more strain on local legislation seen as “not fit for purpose”. This is the case from Europe to Latin America and sources speak of their building frustration at the gap between governments’ words and their limited actions. The issues related to the imbalance between current regimes and modern immigration policy that were noted last year still exist and are increasing the burden on a number of immigration systems. In fact, many claim that it has become even worse thanks to the slow but steady economic recovery and the growing number of companies who are trying to hire foreign nationals but are being faced with almost insurmountable obstacles. Managing risk compliance and organising the global workforce strategically and in a cost-effective manner are all part and parcel of the services required of immigration practitioners.

In the US, the situation is still less than rosy and comprehensive immigration reform remains a pipe dream: as one lawyer claims, “We are still in the holding room.” Despite the improving economy leading to greater job opportunities lawyers note that the immigration agency seems to be more determined than ever to make the approval of any business-related application more difficult. While this is not resulting in an increase in the number of denials, it is making the initial process more cumbersome, and lawyers remark that they are working a lot harder during this stage than in previous years. As noted last year, despite this “frontloading of applications”, there is still a significant number of requests for further evidence, requiring more work on the part of lawyers in each individual case. In particular, the adjudication of the concept of “specialised knowledge” required for the L-1B visa has been met with exasperation by practitioners who suggest that the USCIS is attempting to rewrite the concept in an incoherent manner and in many cases overreaching what the law actually requires.

The H-1B category also remains a huge frustration for lawyers and their clients. Practitioners bemoan the fact that quota numbers seem to be “completely unaligned with the reality”, and this was confirmed once again this year as the high number of applications led once again to a lottery taking place. For the 2015 financial year the cap was reached in five days and according to various US news agencies, about 51 per cent of cap cases overall were rejected for processing. According to our sources, “employers are really hurting from this cap and their ability to plan their business strategy is being severely harmed”. Lawyers are therefore strategising at an early stage, and are forced to come up with numerous options to present to clients who wish to bring in foreign employees, should they be unsuccessful in the lottery.

With oversubscribed quotas for immigrants, employers must now think about how they approach their sponsorship and retention policies and this in turn is leading to more legal advisory work in that capacity. Lawyers are increasingly required to strategically advise clients on how to overcome the progressively more glaring problems in the system. The challenge now lies with immigration specialists “putting their advocacy skills to the test and making the most forceful and eloquent arguments” on behalf of their clients. With the government inevitably setting up more roadblocks in individual applications, “smart lawyers anticipate and understand the potential barriers in order to get over them easily”. However, even with the top capabilities of immigration practitioners these problems have been acknowledged as widespread across the country and the system is very much in need of change. Many state that only an organised reaction by those involved in the sector will bring change and, to that end, the American Immigration Lawyers Association is said to be mobilising to combat the issue and US practitioners are hoping that this will result in a more common sense approach.

That being said, a significant number remain optimistic that a change in government might bring about statutory progress, as continued improvement in the economy will inevitably lead to further strain on the immigration system. For now though, reform from executive action seems the most likely approach, and on that front, lawyers are busy writing blogs and articles in order to lobby the government into accepting change. In November 2014 President Obama announced his plans to use overriding executive powers to enact changes to immigration policy, and despite staunch opposition from the Republicans, lawyers remain hopeful that at least some kind of change will occur.

In Australia, additional process is causing problems for lawyers and their clients as the raft of changes brought in for the most common 457 visa has led to a longer lead time. This has in turn affected the ability of companies to mobilise staff efficiently and is leading to much exasperation. Here, as elsewhere, practitioners are working with clients from the outset, in order to develop and maintain efficient global mobility programmes, aimed at meeting potential problems head-on. This general development of better training and knowledge management passed from lawyers to their clients is likely to continue as clients wish to be kept “informed and engaged”.

Exasperation is also felt in the UK, as lawyers confirm that “the system is broken in both a personal and corporate sense”. Subjectivity is coming back into the Immigration Rules, marking an about-turn from the objectivity which was the core aim behind the introduction of the point-based system in 2008. Practitioners have to ensure that they remain on top of the constant updates brought out by the government, particularly as “things seem to be changed at such short notice”. A recent example comes from the developments to the investor visa regime: on 16 October 2014 the Home Office announced that the £1 million minimum investment threshold would be increasing to £2 million from 6 November 2014 – giving less than a month’s notice. Changes to the business visitor visa are also under way and practitioners expect a continuous raft of changes to different areas of the system. The renewed focus by the UK government on the compliance culpability of employers (among other categories) has led to more worry on their part and to clients viewing their immigration advisers more as “strategic partners”; there to guide them through the complexities of document filing and changing policies. The “destruction” of the PBS means the need for better advice and the increase in client involvement is defining the lawyer’s role more clearly as one of “balancing what clients want to be done as well as managing expectations on what can actually be done”. With growing sophistication in this particular sphere, many lawyers see this as the “make or break” point for them and their colleagues – the level of subtlety and nuance required to navigate the increasingly subjective regulations is a skill that will need to be developed a lot further. As one source suggests, “We may see an enlargement of the gap between quality service and not.” Coupled with the downward pressure on fees, it is likely to be a tough time for law firms attempting to remain competitive. 

With growing interest in development in Africa on the part of many multinationals, local government is responding with policies aimed at promoting employment of locals over foreign nationals. To this end, the Ghanaian government recently enacted legislation which puts greater pressure on employers in the oil and gas sector to justify the need for a foreign worker to fill a position over a Ghanaian citizen. As seen last year, the number of protectionist policies aimed at ring-fencing jobs for local workers and limiting migration numbers keeps on growing. Lawyers affirm that keeping up to date with what is going on around the globe is “more important than ever before”, particularly to provide the kind of top-quality service expected by multinational companies.

Countries across the globe are struggling to maintain a balance between popular policy and investment objectives and each government seems to be at a different point of the pendulum. While many citizens in Singapore feel that the Fair Consideration Framework announced in September 2013 that we highlighted last year did not go far enough, by contrast China’s announcement that it was planning to relax its stringent immigration laws was met with positivity, as a way to attract further foreign experts and those with large investments to make. What our sources do agree on is that immigration is “truly a cycle” both in terms of following the rise and fall of global economies as well as shifting according to the government of the day. While some jurisdictions are looking to implement or strengthen their protectionist policies, others have reached the other end of the spectrum and are looking at means of easing what are seen as burdensome requirements. In both cases, it is the role of the lawyer to manage client expectations and be aware of the jurisdictional differences in play when dealing with a global mobility issue.

Audits are increasing in number across the globe and this trend is unlikely to reverse in the short term. Lawyers are busy responding to the high volume as governments and immigration agencies crack down on cases of incomplete, insufficient or simply non-existent visas. This is particularly the case in the tech sector which sees a lot of movement globally, although there is no specific industry where governments appear to be centring their efforts. With the aforementioned protectionist policies springing up, and increasingly restrictive interpretations of current legislation, lawyers are meeting clients who are frustrated by the narrowing of their ability to hire “the best and the brightest”. Training has also become an important part of many practices, as practitioners go in-house to ensure that if clients are audited, they will have a successful outcome. Many lawyers welcome this change, as they affirm that it is “better to jump in at the beginning than be left solving the problem at the end”. The importance of reputation cannot be underestimated, and with brand management becoming ever-more important, one major problem can have serious consequences for the company. A growing number of lawyers are devoting more of their time to this particular area and they do not anticipate the trend of aggressive investigations slowing down. Ensuring all key stakeholders are kept informed of requirements and working together with clients to create streamlined and efficient global mobility programmes is now just a “normal part of the job of an immigration lawyer”.

Client satisfaction remains a key issue, as they demand “better, faster, cheaper”. While this is evidently a challenge, lawyers are relishing the opportunity to improve the status quo at their firm. Technology is becoming increasingly important for firms, as they attempt to find new methods of increasing efficiency. Many see this as the way of the future and to this end, sources have suggested that smaller boutiques may start to struggle despite having a strong core, simply because they are falling short on the tech systems. They will therefore need to consider ways of remaining viable in the long term. A number of firms that we spoke to have rolled out various forms of IT case-tracking systems which make day-to-day delivery of services more efficient. As one source confirms, “smaller firms either need to invest in technology or start looking towards private client work”.

As the global economy improves, immigration law firms are also expected to keep growing as the legal environment has very much followed the economy. The tiered system, ranging from sole practitioners to huge immigration powerhouses, has largely remained. However, a number of sources question whether a larger number of full-service firms will aim to increase their capabilities in what is turning out to be a lucrative field. To this end, there has been noticeable growth from firms originally boasting strong employment departments who have made much more of a concerted effort to enter the immigration market. Sources attest to this fact, reasoning that a number of these firms have come to the realisation that they are referring a significant number of matters away.

Some of the very large firms have also been further increasing their global footprint and have added staff across the world. However, the big four were named as the biggest challengers to the market, as they pursue immigration more aggressively as an aspect of their global relocation focus. According to one source, “With their extensive footprint and broad client base, we could see a game-changer.” Ultimately however, with companies of all sizes, both national and/or international requiring immigration services, there seems to be room for everyone – what will set the successful apart will be their ability to provide the “top-notch, high-quality strategically minded service that clients are demanding”.

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