While policymakers in Washington, D.C., wrestle with immigration reform, South Florida attorneys grapple with the day-to-day issues of helping their clients navigate the maze of regulations. The problem is particularly acute for businesses seeking to “import” talented executives and professionals from other countries, or to attract foreign investors for job-creating projects.
“Immigration is an issue that affects everything in South Florida from a financial standpoint,” said Grace Escalona, partner at Zumpano, Patricios & Winker, P.A. “Real estate, foreign investment, technology companies and healthcare organizations are all impacted by U.S. policies on who can come into the country and work here. After all, employees are the crux of our nation’s business system, and we need both skilled and unskilled workers to meet industry demand.”
In the business world, immigration-related legal issues generally fall into several categories:
Another issue that affects businesses, as well as individuals and families, is how to address the large number of “undocumented” foreign residents who live in South Florida without legal rights. “It is illegal for an employer to hire someone not authorized to work, and this administration is serious about employer sanctions,” said Ira Kurzban, partner at Kurzban Kurzban Weinger Tetzeli and Pratt P.A. “Our economy is based on small business, and the combination of strict interpretation and enforcement of the immigration laws has hampered the ability of people who want to start up small businesses here to the detriment of the South Florida community.”
On the other hand, the U.S. is handling visa applications from Brazil and other Latin American countries more quickly than in the past, according to Roger Bernstein, managing partner, Bernstein Osberg-Braun, P.L. “Over the past year, the U.S. State Department has made efforts to expedite the wait times for tourist visa appointments at U.S. consulates in Brazil and throughout Latin America,” he said. “But unless foreign nationals can demonstrate strong and significant ties to their home countries, the tourist visa application may be denied. This is especially true for single applicants between the ages of 20-30 who are subjectively perceived as intending to immigrate.”
A ‘Law Enforcement’ Perspective
Today, South Florida employers face a long series of challenges when seeking visas for almost all types of foreign workers, according to Roy J. Barquet, partner at Foley & Lardner LLP, and chair of the firm’s Immigration, Nationality & Consular Law Practice.
Barquet says the U.S. Citizenship and Immigration Services (CIS) views employment visa petitions from a law enforcement perspective, trying to identify potential terrorists and weed out threats to the nation. “Even for immigrants who clearly pose no threat at all, they are sticking as closely as possible to the letter of the law on non-security related statutes and regulations,” he said. “There is no room for any kind of favorable discretion on visa petitions, which need to be collaborated by independent evidence.”
As an example, Barquet cites CIS practices regarding L-1A petitions for transferring an executive or manager from a foreign operation into the U.S. “In recent years, CIS has said the petitioner has to be managing people who are university educated and hold college degrees, even though there is no such requirement in the regulations,” he said. “So, you have to submit an organization chart for the overseas operations and supply photocopies of the university degrees of the people that he or she supervises. If the candidate is working in a country like Brazil, which has very intense privacy laws, you have to hire a local attorney to try to get those diplomas from half a dozen subordinates. That’s a really time-consuming and frustrating situation for employers.”
Larry Rifkin, managing partner, Rifkin & Fox-Isicoff, P.A., says small to medium-size U.S. companies face particular challenges when applying for an L-1A visa to transfer a manager or executive. “Some immigration examiners tend to look to the number of employees when considering if a position qualifies as executive or managerial in nature,” he said. “This is incorrect. However, overcoming the subjective interpretation is difficult when the U.S. company does not have a significant number of employees and a defined executive and managerial structure. It may also be difficult for an immigration examiner to understand that a U.S. company can maintain and grow its operations while it is financially supported by a multinational corporate group.”
U.S. immigration attorneys have been asking CIS to release a policy memo for L-1B visas for multinationals seeking to bring people with specialized knowledge into their U.S. operations. “Without a policy memo, the CIS decisions change from case to case,” Barquet said. “That puts attorneys in an uncomfortable position when a company asks if a certain candidate will qualify for a transfer. We have to tell them it might be a costly endeavor with uncertain results.”
Rifkin says the annual quota for H-1B visas for highly skilled workers is another serious immigration issue for both U.S. companies and foreign nationals alike. “The annual quota impacts the ability of companies to attract the best talent for professional positions that require a university degree,” he said. “The ability of companies to operate globally by employing foreign professionals would improve the South Florida economy since we have the unofficial title of gateway to Latin America.”
Because of the limited number of H-1B visas each year, applicants must apply on April 1 to obtain a visa the following October. “This year, more than 150,000 people applied for about 58,200 visas,” said Kurzban. “We should increase the number of H-1B visas or change our system to make an easier path for STEM (science, technology, engineering, math) professionals, since they are so important to our nation’s future.”
To bring in lower-skilled workers, a South Florida employer must go to the U.S. Department of Labor and complete a certification process that can take several months, according to Escalona. “You have to certify that you cannot find qualified people here to do the job, and then once you get that certification, you have to work with CIS to obtain temporary visas,” she said. “It’s not something you can do quickly because it’s such a time-consuming process.”
Back in the 1990s, the U.S. approved nonimmigrant (E-2) and immigrant (EB-5) investor programs to promote foreign investment of capital in the U.S. and to create new jobs for U.S. workers.
Because only a limited number of countries are included in the U.S. Treaty of Commerce and Navigation, not all foreign entrepreneurs are able to petition for E-2 nonimmigrant treaty investor/trade visas, said Rifkin. “This limits the ability of our area to attract talented individuals who can open up corporations and provide employment for U.S. workers,” he said.
In recent years, potential investors have been increasingly interested in the EB-5 program, which allows them to make equity investments in job-creating regional centers approved by the federal government. “There is a resurgence of direct equity investment in projects and businesses in South Florida of well over $2 billion mostly coming from Latin American, European, Chinese and Russian investors,” said Bernstein. “These programs are expected to grow and gain increased recognition and popularity.”
Rifkin adds that there has been an upward trend in the number of EB-5 applications being processed, particularly submissions by Chinese nationals. “However, many attorneys do not fully disclose the risks associated with the EB-5 Regional Center investment program,” he said. “This is a very good program for individuals seeking residency in the United States through their own investment vehicle, but caution has to be exercised by both the client and the attorney.”
However, Kurzban says CIS is not making it easy for potential foreign investors or for the U.S. companies developing regional centers. “A company was planning an EB-5 regional center in California that would bring new jobs and stores to an area with chronic unemployment and no retail outlets,” he said. “You would think that would be a natural fit. But the CIS examiner said the applicant had not provided proof that the residents would go to a store in their own town rather than driving 30 miles away to shop. That’s an example of the issues facing foreign investors.”
Like other immigration attorneys, Barquet notes that CIS approval times for pending EB-5 regional centers have increased substantially. “In some cases, CIS has engaged economists to understand the metrics of job creation and confirm the project will actually provide new employment,” he said. “Current processing times can now be 14 months or longer. As a result, some applicants are now bypassing the regional centers and taking more control of the process by making a straight-up $1 million investment in a company that will create at least 10 new direct jobs.”
Individual Visa Issues
Like most areas of the law, immigration policies are affected by recent legislation and court rulings. On June 26, the U.S. Supreme Court invalidated a key section of the Defense of Marriage Act (DOMA), opening the path for same-sex couples to immediately apply for green cards, fiancé visas and a number of other immigration benefits.
“Federal agencies are now required to recognize same-sex marriages so long as the marriage is valid in the state or country of marriage,” said Bernstein. Eligible same-sex families now have access to the same family-reunification immigration benefits as other families. U.S. citizens and lawful permanent residents who file residency petitions for a spouse can also do so for the spouse’s children as their own stepchildren.
Another recent change is that spouses and children of lawful permanent residents (preference category F-2A) can now apply immediately for lawful permanent residence, according to Bernstein. This change marks the first time the F-2A category has become “current” in the preference system, said Bernstein, adding that there were 220,313 eligible spouses and children of lawful permanent residents on the waiting list when the policy change occurred in August.
These applicants will be competing for about 88,000 visas, which were expected to be available for the 2013 fiscal year ending September 30.
The Outlook for Reform
Like other South Florida immigration attorneys, Rifkin notes that comprehensive immigration reform has become a political “football” in Congress.
“While some advances have been made, it appears doubtful that we will have a resolution of this issue in 2013,” he said. “However, we remain hopeful that change will eventually occur.”
A relaxation in immigration policy would be good news for South Florida businesses and the entire country, adds Escalona. “Today, the U.S. has to compete with other countries for talented people and high-end investment. We want people to come here and invest in our economy. Therefore, it makes sense to welcome them to our country.