The Trapdoor of Immigration Law
from
July/August 2002
by Eric Moskowitz
“Let the lawyers handle it.”
Once, if you were a board member and the issue of immigration visas came up, that was often the right answer. But maybe not anymore. Since the September 11 attacks, some immigration laws have become more restrictive; they could have a large impact, for example, in diminishing the talent pool for Silicon Valley. Your company’s chances of catching the eye of a reawakened agency like the Department of Labor or the successor to the Immigration and Naturalization Service (INS) are much greater than in the past.
“Immigration laws have always been confusing, but now the stakes really have been raised for corporations in terms of monetary and even potential criminal penalties,” says Carolyn J. Fuchs, a senior partner specializing in immigration issues for Boston-based Hale & Dorr.
With the passing of the USA Patriot Act in October 2001, federal agencies are certain to make examples of companies that ignore immigration laws, says Joseph C. Grasmick, a Buffalo-based immigration attorney. The October legislation has tightened regulations across the board. All males, for example, now have to fill out a special application form when applying for visas. One query reads: “Do you have any specialized skills or training including firearms, explosives, nuclear, biological or chemical experience?” Talk about a loaded question.
Moreover, a male foreign national between the ages of 16 and 45 who’s from one of 26 mostly Middle Eastern countries can no longer simply send his visa to the U.S. State Department for renewal. He must now leave the U.S. and return home to renew a work visa.
Even workers from non-profiled countries such as Russia, South Korea, and Japan are caught in the crunch. They can continue to apply for renewals without leaving the U.S., but H-1B visas—which allow immigrants to work for a specific company for an indeterminate time—will be tougher to obtain. About 900,000 foreign workers have been admitted to the U.S. on H-1B’s since the program began in 1992, according to the INS, and technology companies in particular rely heavily on those visas to find qualified talent in disciplines including engineering and software programming. If Silicon Valley can get off its back, there might be some loud calls for leniency by 2004. That’s because the number of technology H-1B visas has been capped at 195,000 a year for 2002 and 2003, and then plunges to 65,000 in 2004.
Other industries are also in danger of losing key personnel. Last year Congress considered a law that would have prevented pharmaceutical and biotech companies from allowing foreign nationals—even those with green cards—to work with certain chemical or biological compounds. The bill was put on the back burner but could be revived, along with provisions such as mandatory fingerprinting of immigrants with student or work visas. Because of the continuing threat of global terrorism, companies should expect restrictions to get tighter in the coming years, says Peter H. Loewy, a partner with Fragomen Del Rey Bernsen & Loewy who has written extensively on immigration issues from his firm’s Santa Clara, California, office.
In this altered landscape, what must board members do? First, they should make sure that immigration issues aren’t delegated to the lowest level of the company. They should review company immigration policy to confirm that it includes provisions for tracking the expiration of employees’ visas. The board should require human resources to monitor the visa status of employees’ families as well, because if a spouse and children have to leave the country, the valued employee may go too. A company can’t wait until the last minute to handle these issues, says Fuchs; today “you have so many agencies to deal with that calling your favorite senator won’t cut it anymore.”
Board members themselves won’t be personally liable if an investigation finds illegal immigrants on the books, but the last thing you need is a front-page story reporting that your company was not in compliance with immigration law. “No one wants to be the first immigration Enron,” Fuchs says.
Nor would it be wise to try to avoid the rigors of compliance by barring the door to immigrants. Not only would that deprive you of talent, says Fuchs, it would also leave you open to charges of employment discrimination.
