CFGI / Our Network / About CFGI / CFGI in the News CFGI Mentioned – “Words of Wisdom: Witness to an Evolution” 11/27/2017 SHRM Originally published 11/21/2017 Page Content“When I graduated from law school in 1968, immigration issues were not considered part of employment law. In fact, few people even recognized that there was such a thing as employment-based immigration. Existing law did not provide many pathways for people from other countries to come to the U.S. to make a living. “This area of legal practice originated out of a concern for the rights of the immigrants already living here. Immigration attorneys focused primarily on representing foreign nationals who found themselves in deportation proceedings, or who wanted to apply for asylum, or who were undocumented and sought lawful status. As such, immigration was primarily viewed as an aspect of international law.“Early Changes“I noticed that first start to shift in 1970. I was in my first job, serving as staff counsel to the U.S. House of Representatives’ Subcommittee on Immigration, Citizenship and International Law. The National Foreign Trade Council was lobbying Congress to create a visa for people from other countries to transfer to roles in the U.S. within the same company. At that time, there was no easy way for global companies to do that. Instead, they had to devise workarounds, such as bringing people into the country as business visitors for short stints.“Members of Congress recognized that creating an intracompany transferee visa was integral to expanding U.S. exports and bolstering the competitiveness of U.S. companies. The resulting legislation allowed executives, managers or employees with specialized knowledge from other countries to work in similar capacities within U.S. parent companies, subsidiaries, affiliates or branches. It also expanded the H-1 visa category from covering only temporary positions to include regular full-time jobs.“By the time I left the staff counsel position, a group of corporate leaders had formed the American Council on International Personnel (ACIP), a trade group that advocated for better employment-based immigration laws. In 2013, ACIP became the Council for Global Immigration, which is now a Society for Human Resource Management affiliate.“Shifting Tide“A watershed moment for business-based immigration came in 1986 with the passage of the Immigration Reform and Control Act (IRCA), which penalized employers that knowingly hired foreign employees who were not lawfully authorized to work in the U.S. IRCA also ushered in the use of Form I-9, the employment eligibility verification form that all employers are now required to complete and maintain for all employees hired since 1986. “Because many immigrant advocates worried that the I-9 requirement would give employers a reason not to consider applicants who looked or sounded ‘foreign,’ tough new anti-discrimination provisions were included in the law. Employers were, and still are, prohibited from requiring specific documents as evidence of identity and work authorization. They must also avoid asking certain questions that would elicit information about an individual’s national origin or citizenship status.“At the same time, IRCA created a pathway for certain segments of the undocumented population to become legalized. Amnesty was granted to those who had entered the U.S. before January 1, 1982, had resided in the country continuously since then, and had paid back taxes and had no criminal records. Nearly 3 million people were able to legalize their status as a result of the law.“IRCA was intended to drastically curb unauthorized migration. But as history has shown, things didn’t work out exactly as planned. However, IRCA did lay the groundwork for a new focus on immigration enforcement, both at the border and inside the United States. In the employment context, this meant that companies hiring foreign nationals had to ensure that they complied with their new legal obligations.“In 1990, Congress undertook a comprehensive revision of the Immigration and Nationality Act, revamping it to include a new set of employment-based immigrant visa categories. The legislation also overhauled the H-1B nonimmigrant visa program and created new obligations for companies that employed H-1B workers. In 1996, Congress enacted the Illegal Immigration Reform and Immigration Responsibility Act, which introduced new penalties and thus made employment-based immigration much more compliance-oriented. “Today, immigration has been woven into employment law. Business immigration is now a thriving area of legal practice—and a growing part of many corporations’ compliance programs. Moreover, in many organizations without in-house legal departments, the immigration function is administered by human resources, which typically has global responsibility for talent acquisition. “Where We Are Now“The big challenge these days is for corporate leaders to make their voices heard on issues related to global mobility and immigration. In the United States, immigration enforcement is a major focus, and in the business context this manifests itself in, for example, more site visits by government inspectors and more requests for voluminous documentation in support of what used to be fairly routine visa petitions.“In the current political environment, we need to do what we can to ensure that anti-corporate bias does not become part of our federal immigration policy. Immigration is not traditionally a partisan issue—or at least it shouldn’t be. Let’s not forget that the immigration-friendly 1970, 1986 and 1990 laws were put in place under Republican presidents, while the more-restrictive 1996 legislation was enacted under a Democratic administration. Meanwhile, we will continue to see the demographics of the country change. As the U.S. birthrate continues to fall, immigrants will become critical to fueling the growth of the working-age population.“I have spent my career firmly believing that a sensible employment-based immigration scheme benefits our nation’s economy. Immigrant entrepreneurs and other highly skilled foreign workers, for example, start businesses at higher rates than native-born Americans, and those enterprises create jobs for everyone.“I built my firm, which now has more than 2,000 immigration professionals working in 18 countries, with the expectation that employment-based immigration would continue to grow in a globalized economy. Notwithstanding current political developments, that has certainly been true.” To read the article, please click here.