A Three-Point Manifesto For Chief Legal Officers And Outside Counsel
This article will help avoid assorted immigration nastiness from ruining an otherwise stellar legal
career. The article is written to equip chief legal officers (CLOs) and outside counsel with a
declaration of principles that, if diligently followed, will help prevent company executives from
howling and growling: “Why were our lawyers asleep on immigration? Why did they let this
immigration catastrophe happen?” Other purposes for writing are to assure lawyers reading this piece,
who studiously apply the three immigration principles below, that they will never hear the Trumpian
declaration (“You’re fired!”) or pull that dreaded Monopoly card (“Go to jail. Go directly to jail. Do
not pass ‘GO’. Do not collect $200.”).
Immigration has been described by some observers as the “third rail” of American politics. Other
pundits have compared immigration to a downed power line that snakes along the ground, electrocuting
all within its reach. This electrifying, career-destroying feature of immigration is not limited to
American or foreign politicians. The damage and destruction that immigration – in all its aspects (law,
policy, demographics, etc) – often wreaks must also concern in-house counsel and the corporate lawyers
in private practice who advise business entities anywhere in the world.
In years past and still today, many CLOs or business lawyers have happily offloaded responsibility
for immigration functions to others while candidly, if foolishly, proclaiming that they knew as much
about immigration law as could fill a capacious thimble. In-house counsel would assign immigration
“ownership” to the human resources department while the company’s outside counsel would task his
employment-law practice group or an immigration solo practitioner or boutique to assist clients in
procuring immigration “benefits” – work visas or permanent residency (described with chromatic
inaccuracy as a “green” card).
Recent history teaches, however, that the insouciant delegation of responsibility for immigrationrelated
legal issues is often dangerous and downright stupid. A CLO should appreciate how serious such
matters can get. What the immigration police at US Citizenship and Immigration Enforcement (ICE), US
Customs and Border Protection (CBP) and their counterparts in other countries dub “worksite
enforcement” and “border security”, ordinary people describe as “raids” and “G-men” tactics. What the
dispensers of work visas and employment-based green cards at US Citizenship and Immigration Services
(USCIS), and their kindred bureaucrats abroad call immigration “quotas”, business executives see as
artificial obstacles to profitability and red-tape impediments to the business mission.
Immigration, if wrongly managed, will disrupt business operations, damage the corporate brand, and
lead to the imposition of civil and criminal sanctions, the plummeting of stock price and shareholder
confidence, Sarbanes-Oxley headaches, and the loss of key personnel. If managed with a steady legal
hand at the helm, however, immigration can be a marvellous recruiting and retention tool and an
enhancement to a counsel’s career.
Here, then, are three key principles for enlightened immigration-related legal management:
- Own and control the immigration legal function.
- Choose your teammates wisely.
- Put your house in order.
- OWN AND CONTROL THE IMMIGRATION LEGAL FUNCTION
Have no doubt. The chief legal officer of any business entity will be blamed if immigration outcomes
turn sour (even if culpability lies in another department or externally). The blame will also spread to
the company’s outside counsel who chanted the “cross-selling” mantra and incautiously handed off
immigration legal services to the firm’s employment lawyers or blithely referred the client’s
immigration work to an immigration-lawyer friend at the health club.
To paraphrase Colin Powell’s warning to George Bush before the Iraq war, as CLO you own immigration;
if it breaks, you still own it – and it’s your fault.
Owning immigration does not mean mastering it. The subject is simply too complex and ever changing.
Owning entails gaining a basic understanding of immigration law and procedure, devising sound policies,
wisely choosing and leading others who possess both technical knowledge and a skill-set to manage the
complex process, and creating a real-time immigration dashboard and feedback loop. Just as one need not
be a mechanic to drive a car, a CLO – or even outside company counsel – need not know every aspect of
the immigration process to own and lead the immigration legal function.
A simple way to stay up to date on immigration is to regularly peruse a few of the best online
immigration websites and sign up for their newsletters. A good list of immigration sites would include
those run by Bender’s Immigration Bulletin – Daily Edition (www.bibdaily.com), Immigration Daily (www.ilw.com), the American Immigration Lawyers Association (www.aila.org), the Immigration Policy Center (www.immigrationpolicy.org), Compete America (www.competeamerica.org), the American Council on International Personnel (www.acip.com), and ImmigrationWorks USA (www.immigrationworksusa.org).
- CHOOSE YOUR TEAMMATES WISELY
The second principle in this immigration manifesto is probably the most important.
The successful immigration team will include the CLO as its leader along with internal corporate
resources and external professional and vendor support. The internal team should include an immigration
manager and directly reporting subordinates whose numbers will vary depending on the size and scope of
the corporation’s immigration mission, needs and strategies (discussed below). The immigration manager
can be an in-house lawyer or seasoned human-resources manager, or perhaps a tag-team of the two. Other
internal team members, full and part-time, who will not report directly to the immigration manager, may
include one or more recruiters, technical managers, communications specialists, IT professionals, a
business manager and a procurement officer.
Rare is the immigration solo practitioner with the depth of bench and the broad range of expertise
in the many immigration sub-specialties that most businesses today require. Perhaps much the same may
be said of many law firms or practices that repeatedly play the same tune – mass-produced, employmentbased
work, involving commoditised requests for routine immigration benefits. While in the past this
music may have seemed sufficiently melodic, it likely will not harmonise with the future orchestral
immigration needs of globally active corporations. Increasingly, as will be shown, globalised
businesses will require a broader repertoire of immigration-related legal services that also include
lobbying, litigation, audit, compliance, and “white-collar and government-enforcement” defence
capabilities.
The CLO or outside counsel could conceivably rely on the availability in some jurisdictions, for
example California and Texas in the US, of lists of lawyers with board certification in immigration and
nationality law. While this may help to reduce the selection pool, immigration lawyers’ practices often
give significant weight to areas of only marginal interest to corporations, such as deportation and
removal defence, asylum, etc. Similarly, membership in a recognised national immigration bar
association, or in the immigration committee of a state, county or city bar association or lawyerreferral
programme may reveal little to differentiate among seemingly suitable immigration lawyers and
firms.
Perhaps the best strategy is still the tried and trusted. Reliance on “relational capital,” coupled
with vigilant cross-checking, is most often the wisest course. Relational capital has at least three
facets.
The first involves review of publications, such as The International Who’s Who of Corporate Immigration
Lawyers, Chambers Global and Chambers USA, and Best Lawyers in America, that name the best-regarded
immigration lawyers based on peer nominations, empirical research (derived through interviews of
clients and competitors), or optimally, a combination of the two. Users of these guides should note,
however, that they all list immigration lawyers by state or city. Increasingly, immigration law is
national and transnational in scope of practice. While physical proximity to the corporate headquarters
may be reassuring, it should not be the overriding criterion for the most suitable and competent
immigration law firm, given the ready availability of webcams, videoconferencing and air
transportation.
A second relational-capital strategy entails the CLO’s or outside corporate lawyer’s use of their
old-fashioned Rolodexes or new-fangled contact-management software. Much valuable data can be gleaned
merely by asking counterparts in businesses and law to offer feedback on the lists of peer-nominated
immigration lawyers and firms, and on their own experiences with particular immigration law firms.
The third type of relational capital, perhaps less obvious, is that possessed by the immigration
lawyers themselves. One recent development has been the growth of immigration-lawyer strategic
networks, such as the Alliance of Business Immigration Lawyers or IMMLAW, whose member firms serve as
co-counsel in appropriate cases or share best practices in client service and can access real-time
information on successful strategies and late-breaking developments through internal e-mail lists and
training programmes. Probing questions on the depth, quality and breadth of the relationships that the
immigration lawyer or firm has cultivated over the years (in government and among colleagues and
immigration service providers) should therefore yield a good harvest of useful data from which to
select the optimal immigration firm.
One recent trend in law firm selection – the request for proposal (RFP) – should be used sparingly
and with caution in the hiring of an immigration law firm. Much to the delight of corporate procurement
officers who consider law firms as just another form of “vendor” providing a fungible commodity, the
RFP process may yield useful data on cost, but only if adequate time is spent in advance to make sure
that the request sent to the targeted firms precisely defines the scope of the work to allow for
apples-to-apples and oranges-to-oranges pricing comparisons.
RFPs are less helpful, however, when making qualitative judgments about an immigration firm’s
proactivity (the ability to anticipate and avoid or stem problems before they grow unwieldy or do
harm), responsiveness, creativity (strategy formulation and problem-solving), and cost efficacy (the
ability to apply just the right amount of added value – the appropriate amount of resources at a fair
price that keeps both parties in business, for example, through high-level strategic counselling or
lower-tier legal process outsourcing).
- PUT YOUR HOUSE IN ORDER
National immigration laws affect all businesses. These laws restrict or prohibit foreign citizens from
entering, living in, working in or bringing family members to a particular country, and penalise
businesses and individuals who violate national immigration laws.
In the United States, the immigration laws impose a threefold duty on employers to: (i) verify the
employment eligibility of all new applicants for employment without regard to country of birth; (ii)
refrain from hiring or continuing to employ workers who the employer knows or should know lack
employment authorisation in the United States; and (iii) refrain from discriminating against, or
impairing the wages and working conditions of, protected employees. Immigration laws and regulations
will soon impose additional obligations on federal contractors and on companies engaged in business in
selected states, like Arizona and Mississippi, to sign up for E-Verify, a computer-based programme
linked to two government databases that confirms whether all new workers and some current personnel are
or remain legally employable.
Immigration laws also impose quotas, maximum periods of temporary residence, complex procedures to
obtain work permission or permanent residency, and civil and criminal penalties for violations.
Immigration laws likewise figure prominently in the present era because of (i) heightened government
scrutiny of business activities under Sarbanes-Oxley legislation requiring transparency and accuracy in
the publication of corporate financial reports, including disclosure of any materially adverse effects
that immigration violations can trigger; (ii) focus on homeland security and prevention of terrorism;
(iii) brand-damaging publicity of every corporate wrong or mistake in the traditional media, social
media and the “blogosphere”; (iv) the contentious anti- and pro-immigration views of the local
populace; and (v) corporate sentencing guidelines which place a premium on the proactive creation of
internal compliance and whistleblower programmes.
All of these factors lead the prudent CLO and the company’s outside counsel to order the company’s
internal policies, practices and strategies so that immigration serves rather than undermines the
business mission. To put the company’s house in order in this respect, the CLO – in consultation with
external corporate and immigration counsel – should:
Adopt intelligent immigration policies. These policies must include an express commitment to
immigration-law compliance, ongoing training of staff tasked with immigration-related functions,
published standards on terms of sponsorship of employees and their family members for immigrationrelated
legal benefits, periodic self-audits, and prescribed chain-of-command and procedures in case of
government audits, investigations or other law-enforcement actions.
Select immigration technologies cautiously. Immigration-related software vendors who promise wondrous
benefits from automation and case management are proliferating. Government laws and procedures
requiring or permitting electronic filing of petitions and applications, and electronic signature and
storage of immigration-related business and legal documents are similarly burgeoning. In some
situations, choosing to go digital may expose an obscure and inadvert error that violates immigration
law which would otherwise have remained uncovered in a mountain of paper files. The CLO, in
collaboration with the corporate IT department and immigration counsel, should therefore conduct a
thorough reality-check on the supposed benefits and carefully scrutinise the hidden burdens that
immigration-related technologies provide before opting to acquire and use any particular software in
managing the immigration legal function.
Adopt best practices in immigration branding and messaging. As the ageing of populations accelerates
the pace of global competition among nation states and transnational businesses for top talent, the
CLO, in cooperation with internal recruiters, technical managers and communications professionals, must
take a fresh approach to recruitment and retention. Immigration branding and messaging can play a vital
role in attracting and keeping the brightest and best workers. The CLO and the internal and external
immigration teams should reinforce the message that the particular corporation is an employer of
choice, an employer with immigration-friendly policies that provide comprehensive support for
immigration benefits. Payment of legal fees and the provision of top-notch immigration counsel are but
first steps in this effort. Immigration seminars for employees and family members, the development of
an internal immigration portal or intranet with FAQs and self-service features that provide up-to-theminute
status reports, access to documents and opportunities for interaction with the immigration team
members are also important.
Consider immigration as “global mobility”. It’s not just about US immigration any more. Increasingly,
global business requires global capabilities in migration management and mobility. The CLO and the
company’s outside counsel must develop readily accessible centralised or regional mobility solutions
and relationships with competent local immigration lawyers or government-certified migration
specialists. The effort need not entail the creation of a country-by-country structure. Increasingly,
immigration-lawyer alliances and some law firms offer one-stop project-management consulting services
for the corporation’s global travellers and employment-based immigrants dispatched to a new homeland.
The principles of immigration lawyer selection, discussed above, apply with even greater force on the
global stage.
Network with like-minded counterparts in immigration. CLO participation in immigration-related
networking groups is not just helpful but essential. Informal immigration networking through existing
corporate and professional channels is also necessary. Both stratagems avoid reinvention of the wheel,
and provide access to the latest news and useful recommendations that should help to identify suitable
immigration law firms and software vendors.
Visibly support immigration-friendly laws and procedures. For the past three years at least,
immigration observers have witnessed a variety of distressing developments: miserly immigration quotas
running out within days of each annual allotment, long backlogs in case processing and security
clearances, and draconian new restrictions and penalties imposed on businesses. Aside from a few
leaders in the technology sectors, most corporations have opted to maintain a very low profile in the
admittedly controversial debate on immigration. Today, timidity, reticence and obscurity are not
winning immigration strategies. Modern business leaders, backed by enlightened CLOs and outside
counsel, must stand up collectively and individually to speak out on the urgent need for enactment of
business-friendly immigration laws and policies.
A manifesto on any subject is only as strong as the force of commitment behind it. The three points in
this immigration manifesto will only work to heap praise rather than derision on the CLO and trusted
outside counsel if their pledges of action are followed by meaningful and unflagging efforts. Ignore
immigration at your peril. You have nothing to lose but your job and your freedom. Hyperbole? Maybe,
maybe not. You decide.
About The Author
Angelo Paparelli is the Managing Partner of Paparelli & Partners LLP (www.entertheusa.com) in NY, NY and Irvine, CA. He serves as President of the Alliance of Business Immigration Lawyers (www.abil.com), a global network of 26 immigration law firms vetted for practice excellence and client service. Named the world’s leading corporate immigration lawyer (2005 & 2006, International Who’s Who of Business Lawyers) and a first-tier business immigration lawyer (2008, Chambers USA). Paparelli co-authors the New York Law Journal’s “Immigration” column, writes a blog (www.nationofimmigrators.com) and serves asan expert witness/consultant on immigration to law firms and businesses.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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