The topic of U.S. immigration has been both a constant and controversial news item throughout the Trump Administration and is also an important issue that impacts many U.S. workplaces. At the 2019 SHRM Annual Conference and Exposition, there will be an excellent opportunity to learn about workplace immigration options and strategies for employers from Rebecca Peters, SHRM Director, Policy Engagement and Attorney Andrew Greenfield, Fragomen Worldwide Manager Partner at their session, “The New Dynamics for Immigration: Trump Administration and Congressional Priorities?”
Tell us a little about yourselves, your current roles, and what attendees can expect by attending your presentation at the 2019 SHRM Annual Conference & Exposition, “The New Dynamics for Immigration: Trump Administration and Congressional Priorities?”
Andy: I am an immigration lawyer with more than 20 years of experience advising U.S. and global companies on the recruitment and retention of foreign professional workers, including H-1B, L-1, F-1, O-1, TN, and E visa classifications, as well as U.S. residency sponsorship. I also assist my clients with corporate compliance programs and related government investigations related to I-9/E-Verify, PERM, and H-1B/LCA compliance. I'm currently the managing partner of Fragomen's Washington, DC, office and a member of the firm's executive committee.
Rebecca: I am a Director of Policy Engagement for SHRM. I advocate on all of SHRM’s public policy priorities for work, worker and the workplace, however I have 19 years of experience in workplace immigration. I started my career at the Department of Justice legacy Immigration and Naturalization Service then moved on to work as an attorney in private practice and I have been advocating for the last 15 years to modernize America’s outdated workplace immigration system.
Attendees at our presentation at the SHRM Annual Conference can expect to learn about what reform is happening inside the beltway in Congress and the federal agencies, as well as strategies for optimizing visa and work permit sponsorship in today's challenging climate, with particular focus on how to overcome efforts by the Trump Administration to restrict use of the H-1B visa through numerous policy memoranda.
At this year’s SHRM Employment Law & Legislative Conference, you both presented about sponsoring H-1B visas under the current administration. What are some of the new challenges for employers that rely on H-1B and other employer sponsored visas?
New challenges for employers that rely on H-1B and other visas include: for H-1B visas, demonstrating that the sponsored role in the United States meets the regulatory definition of a specialty occupation, that there is the requisite employer-employee relationship between sponsor and foreign worker, and that the employer requires the services of the foreign workers for the entire period of time requested; and for L-1 visas, that there is substantial corroborating evidence of the employer's claim that the foreign workers will and/or has served in an executive or managerial capacity, or in a position requiring specialized knowledge. It is also anticipated that recent changes at the Department of Homeland Security could result in more challenges for HR and employers as we look ahead.
Could you both describe some provisions of President Trump’s Buy American Hire American Executive Order (BAHA) that employers should be aware of when hiring foreign professionals?
President Trump's BAHA executive order has resulted in numerous United States Citizenship and Immigration Services (USCIS) policy memoranda that have made it much more challenging for employers that are sponsoring foreign workers for H-1B visas. These memos include the Computer Programmer memo, which confines the definition of “specialty occupation” and places higher burdens on employers to justify degree requirements; the End of Deference memo, which instructs adjudicators to request evidence and information even where facts are unchanged from a prior approval; the Third-party Placement memo, which requires contractual and other documentation from employers whose H-1B workers provide services at customer sites; the Notice to Appear memo, which threatens to place foreign professionals into removal proceedings if their extension petitions are denied; the Unlawful Presence memo, which increases risk of entry bans to foreign students who previously violated status, applied retroactively; and the Denial without RFE memo, which reinforces the discretion of adjudicators to deny employment petitions without first issuing a Request for Evidence.
What are your short-term predictions for any changes to U.S. immigration policies that may impact employers with a Democratic-controlled House, Republican-controlled Senate, and President Trump? Any updates regarding Deferred Action for Childhood Arrivals (DACA), E-Verify, H-1B Lottery/Caps, etc.?
With a divided government, the likelihood of comprehensive immigration reform is slim, but depending on the environment there could be opportunities for bipartisanship agreement, and we could see stand-alone bills move forward that fix or address specific issues. Given its bipartisan support, Deferred Action for Childhood Arrivals (DACA) is at the top of this list. We also believe there is a good chance that a bill that eliminates the green card per country limits moves forward in the House given its robust bipartisan support that could gain legs in the Senate. While getting a universal requirement for E-Verify would have a lot of support on both sides of the aisle, movement is not very likely until there is an opportunity for agreement on a larger immigration bill.
Of course, while many in the business community would like to see an increase in H-1B numbers, a stand-alone bill on this would be difficult to move forward this Congress, as it would likely move with a much larger workplace immigration reform bill. On the regulatory front, we are likely to see a regulation to rescind H-4 employment authorization at any time. We may also see a larger H-1B regulation that in part is likely to redefine the definition of an employer-employee relationship and its possible regulations to address F-1 students seeking practical training issue a maximum period of authorized stay could emerge.
Andrew, as an attorney and managing partner with Fragomen Worldwide, a global leader in global immigration law, could you describe some situations when an employer should consider consulting with an immigration attorney?
Andy: Immigration lawyers are crucial in today's climate where the consequences of non-compliance can lead to severe civil and even criminal penalties and can have a devastating impact on companies with heavy reliance on foreign talent. Any time a company receives an inquiry, let alone a subpoena, from a government agency, consulting immigration counsel should be your first move. This includes the U.S. Department of Labor's (DOL) Wage and Hour audits of H-1B/LCA compliance; ICE I-9 and E-Verify investigations; and queries from the U.S. Department of Justice's (DOJ) Immigrant and Employee Rights division regarding alleged citizenship status discrimination. But even in the absence of government audits or investigations, the day-to-day issues that arise when sponsoring foreign nationals for temporary work permits or residency "green card" sponsorship are increasingly complex and require legal guidance.
HR professionals should know or make it a priority to know of every employee on a company-sponsored worker permit and should work with immigration counsel to develop a short- and long-term immigration strategy for each such resource within the context of business needs. Hiring immigration counsel is not just about finding a lawyer that knows the law, but also counsel who fundamentally understands your business and can partner with you to optimize workforce planning and business continuity through carefully planned immigration strategies.
Rebecca, as a Director of Policy Engagement for SHRM, what are some of SHRM’s priorities and initiatives regarding immigration policy and the impact on employers and workers?
Rebecca: SHRM’s priority in the immigration space is to support reforms that modernize America’s workplace immigration system in a way that ensures HR and employers remain competitive and innovative while protecting U.S. workers. In Congress, we have already successfully advocated to ensure an additional 30,000 H-2B visas will be issued by the U.S. Department of Homeland Security (DHS) this quarter.
We also are working to encourage bipartisan agreements on DACA and first steps to reforming our employment green card system, but you will have to come to the session to get the details! I also believe we have opportunities to modernize U.S. Citizenship and Immigration Services processes to create a more predictable and efficient system for HR, employers and the government, but you will have to attend to hear SHRM’s perspective.
Besides speaking at the SHRM Annual Conference, what will you both be looking forward to doing/seeing/hearing at the conference in Las Vegas?
Andy: I'm fascinated by artificial intelligence and how advancements in technology are changing the workplace. I plan to seek out sessions that focus on the intersection of HR and technology.
Rebecca: I am really looking forward to some of the mega sessions on Sunday especially one that SHRM Government Affairs is hosting on HR & Policy Leaders Working Together to Create Better Workplaces for a Better World. We hope to see a lot of SHRM members attending this session as it remains imperative to the profession that we elevate the voice of HR with policymakers and with business leaders. Additionally, I am really looking forward to some of the keynotes like Martha Stewart and Blake Mycoskie and I am so excited to see our entertainment, Lionel Richie!
You can hear Rebecca and Andrew’s presentation, “The New Dynamics for Immigration: Trump Administration and Congressional Priorities?” on Monday, June 24, 2019 at 10:45 a.m.
Rebecca Peters, director of policy engagement
Mrs. Peters has worked with the Society for Human Resource Management (SHRM) since October 2018. She previously worked for SHRM’s former affiliate the Council for Global Immigration (CFGI) in the Washington DC metro-area for nearly fifteen years, helping to advance high skilled immigration and employment verification reforms with the U.S. Congress, the White House and the federal agencies. She has served as a chair of the policy committee of the Compete America coalition. She also serves on other coalitions and working groups to educate and advance immigration system efficiencies and to ensure critical changes to employer immigration compliance are reasonable.
Andrew Greenfield, managing partner
Andrew Greenfield is an immigration attorney with over 20 years of experience advising HR and global mobility professionals on U.S. immigration and nationality law and policy and related corporate compliance programs. He counsels clients across industries on visa and work permit matters and the immigration consequences of mergers and acquisitions and other corporate reorganizations, as well as I-9/E-Verify, H-1B/LCA and PERM compliance, and representation during government audits and investigations. Andrew is the managing partner of Fragomen Worldwide’s Washington, DC, office and a member of the firm’s executive committee, which directs the management of the firm’s 50 offices in 27 countries.