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Trends in the Corporate Immigration Legal Market 2016

The past year has witnessed some of the most severe political upheavals across the world in recent history. The great surge in global migration has rendered immigration a polemic issue, with more than 1 million migrants and refugees arriving into Europe in 2015. Such drastic changes on an international level, coupled with the increased globalisation of business, have brought the topic of immigration to the forefront of current political, social and economic debate.

Throughout 2015, the US saw a continued drive for a review of immigration laws; however, sources have lamented that this is unlikely to happen any time soon, as multiple lobbying groups seem to be in a constant tug of war, resulting in a divided and heavily polarised administration. It remains clear that the country is in great need of comprehensive immigration reform, with old legislation making it difficult to practise in a new economy. As the economy improves, companies’ efforts to strengthen their position within the US market through corporate immigration channels continues to be thwarted by strict regulations. Lawyers are now required to go through a slower and more document-intensive process, in which is it necessary to provide an increased amount of evidentiary support to applications.

The HB-1 visa category remains a problematic and frustrating area for lawyers, as quota numbers as well as the lottery system continue to pose limitations on what they can achieve. Although this seems unlikely to change anytime soon, according to sources, it is inevitable that at some point in the near future the situation “will come to a head”. The H1-B visa category is not the only aspect of the US immigration system that is unpredictable, as many have noted processes becoming increasingly subjective, leading the outcome of an application to rely heavily on the person examining it. Such uncertainties are limiting the extent to which companies can plan ahead. Therefore lawyers are forced to develop innovative and resourceful strategies in order to meet client needs, with many now viewing a company’s immigration needs in the context of what any plans might mean for the business as a whole.

Despite this growth in work, practitioners have found themselves increasingly subject to fee pressures over the past year. Many sources have noted that clients are now demanding flat fees: a request that is inevitably problematic, as it is difficult to gauge the cost of an individual case before it has even begun. Firms have therefore found themselves needing to reassess their fee structures, in order to adapt to current client demands.

The UK has also had its fair share of corporate immigration hurdles over the past year. The introduction of the points-based system in 2008 promised the beginning of simpler and more transparent immigration regulations. Despite such intentions, the change seems only to have further complicated the process. The points-based system is now reaching maturity, and as such, problems are beginning to arise. Sources have commented that, in order to deal with these problems, the government has added additional caveats to the original immigration policy, and these increasing layers of remedial measures have led some practitioners to refer to their work as dealing with “a complex matrix”.

In addition to ad hoc reactionary measures, new initiatives have also been launched, as was seen with the introduction of the immigration health surcharge (IHS) last April. This gives migrants the same access to the NHS as UK citizens, and must be paid by those applying from outside the UK for a visa lasting longer than six months, and those applying from within the UK for any length of visa. The IHC will usually cost each individual £200 per year (£150 a year for students), with dependants also having to pay the same amount.

Practitioners have also identified dual-citizenship applications as a growth area throughout 2015. Following the Conservative party majority in the 2015 UK general election, there is now pressure on David Cameron to bring about an EU referendum. The fear of a British exit (dubbed “Brexit”) from the European Union has caused a surge in the global citizenship market. Many are looking to consolidate their citizenship status now that the idea of European free movement is in jeopardy, and depends on whether or not the UK’s position within the EU changes.

It is also clear that UK immigration regulations are becoming progressively more stringent. Many comment that they have seen an intensification in the focus from the Home Office, particularly with regards to compliance issues, which were among the most identifiable sources of work for UK immigration lawyers in 2015. Since the introduction of the points-based system, there has been an expectation from the government that employers are on top of their own corporate immigration matters. This has resulted in additional work for lawyers, whose corporate clients require their expertise when resolving internal immigration problems, and keeping up to date with the ever-changing regulations. Corporate entities have been directly affected by this via an increase in unannounced compliance visits from the government. With the onus now on the employer to remain compliant, clients are taking a more collaborative approach with their legal counsel, whose own role now possesses a distinct educational focus, with some firms actively working with companies to help tailor and customise their own internal immigration programmes.

This shift in responsibility for corporate immigration matters has arisen alongside a general focus from the UK government to reduce net migration. This is by no means a new concept; however, sources have noted that the dichotomy of the government wanting to achieve this but also to bolster the economy has resulted in a situation where the two objectives are at loggerheads. They have identified the technology sector as one that, in order to grow and prosper, is in need of expertise from overseas – a plan hindered by immigration-limiting policy.

The US and the UK aren’t the only areas to have experienced changes within the immigration sector, as the Asia-Pacific has also seen its fair share of activity over the past year. Australia has seen a move towards consolidation within its immigration services. On 1 July 2015, the Department of Immigration and Border Protection was integrated with the Australian Customs and Border Protection Service to form a single entity now known as the Australian Border Force. Furthermore, as seen on an international level, there has been a renewed focus on immigration policy and enforcement in Australia, with sources noting a rise in the number of monitoring exercise and audits carried out. The 457 programme, the temporary work (skilled) visa, has found itself under increased scrutiny as authorities review each case much more closely. As a result, lawyers are forced to plan ahead, strategise, and develop creative and innovative solutions to adapt to a more restrictive environment.

In India, despite the increased vigilance on compliancy, corporate immigration continues to remain an active field. Indian companies are becoming more confident about doing business overseas, and consequently, there has been an increase in demand for global immigration services outbound. According to sources, “this is the best time to be a lawyer in India”, as the legal market continues to grow with a seemingly exponential demand for talent.

Africa has also been identified as another active area, which is providing work to domestic practitioners, as well as those based in the Middle East and as far out as the US. Corporations, particularly in the oil and gas sector, view its fast-growing economy as an opportunity to invest across the continent. As ever, corporate expansion brings with it the need for corporate immigration, which over the past year has been most notable in Sub-Saharan Africa and South Africa. The latter recently extended its long-term visitor visa application, and now offers two-to three-year multiple-entry business visas to already-known visitors. While last year, Nigeria revised its Immigration Act introducing firm penalties for cases of non-compliance. Africa is fast becoming an active market, with multiple jurisdictions reviewing their immigration policies in order to adapt to the rise in corporate immigration into the continent.

As was the case last year, client satisfaction continues to remain at the forefront of lawyer-client relationships. Whether a large law firm dealing with multinational corporations, or a boutique firm working alongside small-medium sized companies, the need to retain current clients as a means of generating more business is an ever-growing priority. Sources have noted the need to develop a more responsive, bespoke and personal practice that can also deliver the resourceful and innovative solutions that are vital for the successfully practice of immigration law in the current environment. Certainly, one way in which many practitioners ensure they remain at the forefront of the field is through continued affiliation and involvement with key legal organisations such as the American Immigration Lawyers Association (AILA) and the Immigration Law Practitioners’ Association (ILPA), which are viewed by members as “knowledge-sharing vehicles” that are vital in enhancing and improving their own expertise.

The future of the immigration market remains unclear; however, with the practice area acutely affected by the ever-changing political and economic global environment, it would seem that it is the the type rather than the quantity of work which has changed, keeping lawyers as busy as ever. Indeed, current attitudes and the use of “immigration” as an umbrella term together fail to take into account the multiple demographics that fall under it. It is in this context that the development of immigration policy becomes problematic and unpredictable. Many have noted that until the term “immigration” ceases to be used as a political point-scorer, there is little chance of seeing the reform and change that their immigration systems need.

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