Research Trends and Conclusions: Corporate Immigration 2012

With the benefit of over 15 years of research and tens of thousands of votes from clients and private practitioners, Who’s Who Legal takes a closer look at developing trends in the corporate immigration legal marketplace worldwide.

GLOBAL ACTIVITY

The past 12 months have proved an interesting time for corporate immigration practitioners worldwide. The field has seen a marked shift in the political attitudes towards business immigration, not always for the better, and regulatory changes have affected the type of work and level of expertise being demanded of lawyers.

In keeping with the findings from our previous years of research, 2012 continues to strengthen the trend that a more globalised business world is assisted by the transfer of workers and skills. The talents of legal practitioners who can navigate local and international law and regional political nuances are more in demand than ever.

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We feature 441 inclusions this year, compared to 324 in 2008, which shows a 26 per cent increase in the numbers of lawyers we identify as leading specialists, as seen above in chart 2. Further, the corporate immigration landscape continues to be split between a few dominant global firms, such as Fragomen and Berry Appleman & Leiden LLP, and smaller boutique – often solo – practices. Over the past four years we have traced an increase in the number of firms in our research: 56 more firms and five new jurisdictions make an appearance, reflecting the faster pace of expansion in law firm departments.

Last year we reported that the protectionist approach of governments had blurred lines between socio-economic migration and corporate immigration taking place. This was evidenced in the renewed visa quotas in certain industries and countries. This year, once again, the global legal marketplace has had to react to tougher policies on corporate immigration. According to the lawyers we spoke to the nature of this work has become increasingly difficult to predict and administer, and the relationship between lawyers and local immigration agencies continues to be strained by bureaucracy and anti-immigration agendas.

DEVELOPMENTS & TRENDS

In North America, lawyers reported that the US Department of Labour and the US Citizenship and Immigration Services agency have invested heavily in the auditing and enforcement of workplaces to ensure employers comply with worker pay and eligibility criteria. The economic downturn resulted in many businesses scaling down their overseas recruitment, and governments and agencies taking a more guarded approach to inbound migration by raising standards and adding more scrutiny to the process. As a result, corporate immigration lawyers are seeing a demand for compliance training, responses to enforcement investigations and advice on internal solutions. As one lawyer remarked, corporate clients fear that the “government will come knocking on doors”, and the penalties for non-compliance of immigration rules can be ruinous for small and medium-sized companies. In addition, hiring figures have diminished in the public sphere, along with state budgets, but private-sector employers are still prepared to make crucial, strategic hirers and recruit from abroad, keeping lawyers busy.

As the US presidential elections get underway, lawyers forecast an overtly political agenda when it comes to policy but exactly how this will play out remains unknown. Some lawyers predict minor regulatory bills in an attempt to take advantage of a lame duck Congress just before November, but others think it is highly unlikely any pro-immigration proposals will get to Congress before the election – even for the Democratic Obama administration pro-immigration rhetoric could be political dynamite. But almost all of our US contributors foresee major political grandstanding on the matter with little significant, and most importantly, federal change. During economic downturns, immigration an injection of highly skilled workers could aid recovery, but the lack of a comprehensive, nationwide corporate immigration law is still regarded as a handicap in the country, and this is expected to be the case for the medium term future.

In Europe, agencies refuse applications to sustain low quotas in a bid to prevent worsening national unemployment levels, so lawyers are also seeing compliance, auditing and appeals work. According to our research, the most pronounced case is in Italy where lawyers explained that this year’s policy will, in effect, result in a cancellation of non-EU inbound immigration. In Germany, a new residence permit was introduced in September 2011, switching the process to an electronic system but this has led to an increase in bureaucracy and higher costs for clients. The complexity of the system means more incorrect submissions, more time and eventually the need to involve lawyers. Despite this, immigration rates soared by 19 per cent in early 2011, according to the country’s federal statistics, which may have been a factor in the three per cent economic growth rate and the fall in unemployment figures last year, still making Germany a prime relocation spot for skilled labour.

Equally, the lawyers that we spoke to in England describe the increase in investor visas, compliance and sponsor licences work over the past 18 months. The government is encouraging big moneyed investors into the UK to boost the national economy but, according to the lawyers here, the potential benefits are being eroded by frequent and poorly disseminated regulatory and legislative changes and restrictive quotas that are aimed at the more general immigration body. One lawyer in London stated, “I get e-mail memos every week and the change in legislation is sometimes communicated in a footnote.” Ultimately, lawyers expect caps and quotas to remain in place until there is a change in government, or a change in immigration policy towards non-EU workers.

Looking to the near future, European business immigration lawyers expect significant changes following the adoption of the single permit directive, which implements a common immigration policy, creating more rights for non-EU workers legally residing in EU states. Further, lawyers hope the European Blue Card will ease intra-company transfers and help secure employment for at least three years. The goal is to simplify migration procedures and give migrants employment-related rights. Lawyers are optimistic about the developments but continue to call for a positive political attitude towards immigration in order to meet with the challenge of a widening global economy.

In general, activity levels seem to be determined by the government’s approach towards inbound corporate immigration. In Mexico, the corporate immigration bar is relatively small but effective: lawyers successfully lobbied for a new immigration law this summer which should resolve some of the administration and transparency issues being experienced in the system. Israel’s small immigration bar is battling against a similar short-sighted policy: caps affecting intra-company transfers have been lowered in response to a real or perceived abuse of the system, lawyers explain. Australian lawyers reported that the bulk of their work is focused on the Asia-Pacific region, or on student-turned-worker migration to and from the UK. A lack of transparency in the system has created difficulties: the process is in need of more legal involvement and advice as applicants face rejections without receiving clear reasons, which for businesses means repeated time delays and costs. But lawyers do not expect any positive developments this year or next, as the governments stay in power.

Countries that are experiencing rapid economic growth rely on labour mobility as an essential sustaining tool. Last year, as part of its growth agenda, Brazil reduced the minimum investment needed for foreign nationals who hold managerial positions in companies to obtain permanent visas. Since its implementation in August, the resolution has created more investor, intra-corporate transferee and dependants’ visa work, and with the five per cent GDP presently being fuelled by an increase in minimum wage and consumer confidence, lawyers foresee more work in the coming year.

Despite its seven per cent economic growth India is struggling to counteract the affects of a ‘brain drain’ of its IT, finance, science and academic talents. According to one lawyer, a consolidated regulated work permit is greatly needed: the current requirement that an employment visa can only be granted where a local citizen is not available for appointment is preventing much-needed inbound skilled labour and is delaying fast-track processes. Lawyers agree that the immigration requirements need reviewing.

The majority of our contributors see work from the high-tech, engineering, IT and financial services – particularly intra-company transfers and visas – as forming the bulk of their transactional work. Lawyers explained that the key to a long-term clientele is to help them achieve their objectives at a reasonable cost and therefore keep them trading: good corporate immigration lawyers help businesses to secure the labour they need, in order to ensure they stay in business, and in doing so secure future work for themselves.

THE FUTURE OF THE IMMIGRATION BAR

As a result of tougher enforcement from agencies and governments worldwide, businesses are looking for ways to circumvent cap limits and onerous rules, and so look for creative and experienced corporate immigration lawyers to advise them, not only on immigration matters but also on hiring strategies. Although there is often some overlap with employment, labour and management law, lawyers explained that due to the way the practice is directly affected by political and economic factors, it is no longer viable to have it as part of a greater employment practice – immigration is becoming ever busier and more specialist, and the need for expert counsel is becoming greater. The result is an increase in specific boutique firms and specialists.

Compared to our other publications, the number of firms we list in this edition is closer in figure to the number of entrants. The increased size and competition in the marketplace has led to more competitive price and quality control as those who are most highly regarded in the industry (and our research) vie for major clients and strive to earn international reputations. As we reported last year Fragomen and Berry Appleman & Leiden LLP were the only firms to boast over nine lawyers in the edition, and as can be seen in chart 3 above, this year the same is true. Only a handful of law firms have offices outside their founding cities or country, signalling that lawyers, particularly in the US, tend to focus on state or local practice.

Firms

Smaller firms tend to concentrate on one professional industry, such as IT, but a few larger and expanding firms in our research, such Laura Devine Solicitors, have the manpower to diversify within the immigration field into areas such as entertainment, sports and medical professionals, on both sides of the Atlantic, and so protect against loss of business caused by fluctuating economic or political conditions. Further, they have the means to establish an international presence, a trait that is lacking most notably among the firms in this practice area.

In short, the increased sophistication of commerce calls for more widespread expertise, data reporting and processing. It is no longer practical to run a corporate immigration service as part of a labour and employment practice, the work needs expert counsel. Lawyers do not predict any meaningful change until there is a shift in political attitude viewing immigration, corporate or otherwise, as less of a social problem and more of a long-term business solution.

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Nominees have been selected based upon comprehensive, independent survey work with both general counsel and private practice lawyers worldwide. Only specialists who have met independent international research criteria are listed.

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