Our research team conducted more than 60 interviews with leading immigration practitioners worldwide this year, discussing global trends and the legal market in the area. Dozens of potential issues, trends and topics of conversation were identified. Changes in US immigration law and policy were among the hot topics in this year’s research. The resulting uncertainty presents immigration practitioners with immense challenges as clients struggle to plan for their long-term business needs. In the US, the Trump administration has brought unpredictable changes to policy and procedure. In the UK, lawyers are busy advising on nationality and citizenship issues following the UK’s decision to leave the EU, with details of the UK government’s post-Brexit immigration policy not due to be announced until autumn 2018.
In our research for last year’s publication, conducted in the weeks prior to Donald Trump’s presidential victory in November 2016, interviewees predicted “ugliness and nastiness” and “a war against immigration” if he was to succeed in the election. One year after his inauguration in January 2017, sources affirm these predictions and describe “a toxic environment” marked with “anti-immigration onslaughts like never before”.
According to interviewees, the Trump administration has taken a “highly adversarial” attitude to immigration law whereby “everything labelled ‘immigration’ is seen as a negative”. The administration has not limited its hostility to undocumented illegal immigrants; indeed, it has devoted considerable attention to legal immigration. Government policies have “infiltrated all aspects of immigration”, and “even those here legally are petrified”, say sources. Immigration lawyers are in extremely high demand as corporates and individuals alike deal with complex issues stemming from the government’s extremely restrictive approach. “Never before has the need for sophisticated legal advice been so desperate,” says one source.
The US remains the country with the world’s highest GDP and this, combined with President Trump’s pro-business economic policies, which have resulted in significant economic growth, has meant that the US is, as one source put it, “a cash cow” that remains a popular destination for businesses. The economy is performing well and “business and employment work is still growing despite the negative political environment”, say interviewees. However, the uncertainty regarding immigration is off-putting to many businesses and “makes it very difficult for lawyers to advise on what will happen next week, let alone plan for clients’ long-term business development”. In this anti-immigration environment, clients are extremely concerned about remaining compliant with policy and process changes while meeting their commercial necessity of attracting and retaining talent from abroad. The government is urging companies to instead look within the US to find the requisite talent, seeking “to create higher wages and employment rates for US workers”.
Interviewees reported to us “a sudden and extreme change” in US immigration policy. This has been achieved through restrictive interpretation and enforcement of existing law by government agencies, rather than by substantive legislative changes requiring the approval of Congress. In what one lawyer describes as “a full-frontal attack on business immigration”, policy changes are being made “by very draconian interpretations which have upset decades of past interpretations of the existing law”.
The rapid upheaval of long-standing policies has been “unpredictable and unprecedented”. For lawyers, “this makes it very difficult to counsel clients”. As one interviewee put it, “Practitioners have to be flexible, realistic and adapt to the time, and be creative in how to strategise arguments and the evidence we put forth.”
Major changes of 2017 included an announcement by the United States Citizenship and Immigration Services (USCIS) that it would not give deference to prior decisions issued by it in applications to extend an individual’s immigration status. This is a huge change in practice that has made it increasingly difficult to renew existing visas. The “Buy American, Hire American” executive order stresses that the issuance of visas must always take the interests of US workers into account. This has “a substantial chilling effect” on the ability of companies to send employees to the US and “creates an open hunting ground” for those who adjudicate cases concerning corporate clients. Interviewees told us that the compilation of executive orders in the first year of the administration has made case adjudication more complex and caused delays. Furthermore, lack of guidance as to how to apply executive orders has caused “a complete lack of consistency” in decisions issued.
Among the changes seen in 2017, requests for additional evidence have had one of the greatest impacts on immigration practice in the US. Sources report “an increasing emphasis for agencies to actively scrutinise cases that they may not have looked at so closely before, often without cause”. For example, there has been a 46 per cent increase in requests for additional evidence on H-1B visa petitions issued by USCIS. One source states that the “back-door mechanism” of reducing the number of H-1B visas by challenging applications with requests to evidence relating to salary levels “is one of the areas that have impacted business immigration most heavily”. The heightened security has also led to denials for visas which would have been approved in previous years, with one source estimating the denial rate for H-1B visas to now be as high as 50 per cent.
Increased scrutiny and requests for additional evidence have caused administrative delays in the US and in overseas consulates. USCIS now requires all applicants for employment-based green cards to have in-person interviews. Interviewees voice concern over the ability of local offices, which have limited resources and are already running with backlogs, to deal with the huge new workload. One lawyer raises the question as to whether these interview requirements will prevail in light of the resources required.
Sources have reported a “massive uptick” in enforcement against employers. Sanction laws are being “ramped up” to punish employers for technical violations of proper employment authorisation. In this “vicious” enforcement environment companies have placed a huge emphasis on compliance and companies are actively reviewing their immigration programmes with audits and reviews to ensure full compliance.
The Buy American, Hire American executive order aims to encourage employers to employ US talent. Interviewees state that although this is to be encouraged, it fails to recognise the economic reality that there is not enough American talent to meet businesses’ legitimate needs and demonstrates “a clear disconnect between politics and the business community”. In the words of one source, “The immigration system should be reviewed not as a replacement, but a substitute to American talent.” The restrictive tightening of visa requirements disregards this, and is viewed by many of those we spoke to as a step back from the global business environment which is contrary to public policy and does not support the business community in the US.
Going forward, sources expect the administration and its agencies to continue their efforts to increase levels of scrutiny of “every last aspect” of US immigration process and policy, and “any thoughts about broad reforms that might result in more visas being issued are pipe dreams now”. As one interviewee summarises: “America is still open for business, but it is harder to get in.” By contrast, Canada is expecting to take in 1 million immigrants by 2020 in order to fill skilled-labour gaps in its workforce. Whatever the coming year brings, it seems highly likely that US immigration lawyers will be as busy as they have been for many years.
The USA is not the only country experiencing a substantial period of uncertainty. The UK’s decision to leave the European Union sparked a dramatic uptick in requests for immigration and citizenship advice. In the months following the referendum, practitioners have been advising European nationals resident in the UK who are concerned about their status post-Brexit, and are anxious to demonstrate that they are exercising a treaty right to remain. With 3 million EU nationals currently in the UK, this is a huge task for the Home Office and will require substantial resources. Companies are waking up to the threats that restricted access to the large pool of European workers poses to their business operations. Certain industries and regions such as London rely heavily on EU workers. The Bank of England predicts that 10,000 jobs in the City of London may be lost on Brexit day, and has admitted that it is “plausible” for 75,000 jobs to be lost in the long-term. As Brexit negotiations continue, it is currently unclear what measures will be agreed to fill the skilled and unskilled labour gaps left by EU nationals once freedom of movement for EU nationals ends on 29th March 2019.
The government has announced that the new immigration policy will not be released until autumn 2018, once the Migration Advisory Committee (MAC) issues its report on EU migrants’ impact on the UK’s labour market. A draft White Paper leaked in August 2017 some shed some light on the UK’s approach, but the uncertainty “keeps clients in a state of flux”. With the policy to be announced only a few months before the UK leaves the EU, this leaves little time for clients to plan for the consequences.
Although the UK is still viewed as an attractive destination to set up shop due to its strong economy and geographical position, interviewees predict that, as most businesses prepare themselves a year or two in advance, the lack of certainty surrounding post-Brexit immigration policies will deter some businesses from entering the UK market. They have reported a slowdown in the number of companies wishing to deploy their employees and observe that many companies are holding off on investment plans. There has also been a drop in the number of non-EU national foreign investors coming to the UK amid strategic questions over whether the UK is the best place to set up headquarters in the EU. Practitioners in Ireland have seen an increase in companies looking to secure permits and foreign investment in Ireland as it is viewed as “a safe harbour in the storm”. Many companies are also considering relocating individuals to other European jurisdictions for licencing purposes in order to “hedge their bets, just in case”.
This uncertainty is the greatest challenge faced by companies and lawyers alike. In the words of one interviewee, “Clients come to lawyers expecting them to fix issues. We cannot ‘fix’ issues in immigration, as we don’t know what we’re trying to address. The lack of knowledge is a huge obstacle.”
The government is now tasked with “unpicking a relationship with the EU which has lasted for over four decades”. In the short-to-medium term the UK economy cannot rely solely on domestic workers. Government negotiators are therefore challenged to balance the tension between the desire to reduce net migration and the need to secure access to skilled and unskilled labour in the UK labour market. One lawyer commented, “Immigration underpinned the Brexit votes of many people, and it will be difficult for the government to resolve this conflict without being seen to betray Brexit.” How this balance will be struck remains to be seen.In March and April 2017, Who’s Who Legal conducted in-depth research into the preparations and response of the legal market to the Brexit vote as well as law firm’s perceptions of levels of client concerns. The full report can be read here. We are planning to conduct a similar study in 2018. For further details, please contact the editor, Rupert Wilson.
Immigration challenges presented by political developments around the world have resulted in a high caseload for immigration lawyers. Competition is fierce yet collegial. The top end of the market is occupied by a small number of well-established players who each occupy their own niche in the market. Firms of all sizes are thriving – immigration law is an area well-covered by sole practitioners, boutiques and full-service firms alike. “The increasing complexity makes it very difficult for those who don’t specialise in the area,” say lawyers.
The need for companies to relocate employees around the world, paired with the increasing complexity of immigration policies around the world, has created a heightened need for sophisticated legal advice. Many law firms are rapidly expanding their practices, broadening their capabilities and adding to their talent pool in response. For example, in the US, firms have been keen to develop a strong ability to represent people caught in deportation. Interviewees have reported an influx of younger lawyers entering the immigration arena in recognition as the need for the work increases, which is described as “a very healthy dimension of the legal landscape”.
The past year has seen “sweeping changes and nationalistic tendencies” in jurisdictions around the world, most notably in the US and UK, but also in countries such as Australia and China. In general, these approaches have placed a greater emphasis on protecting the local labour market, which comes at the expense of businesses who need to bring in foreign talent. Such policies have not only brought great uncertainty for businesses and individuals alike but have also evoked strong, and in many cases defiant, responses from those who practise immigration law. In the words of one lawyer, “The need for solid legal representation will be greater than ever in this new environment. For as many people who are frustrated and disheartened by political changes, there are many more who are rising to the challenge and feel like legal warriors standing up for fairness.”