Global HR News

London Euro-Atlantic ConferenceLondon Euro-Atlantic Conference

November 27, 2007November 27, 2007

Austin T. Fragomen, Jr., Esq.

Fragomen, Del Rey, Bernsen & Loewy, LLP515 Madison Avenue, New York, N.Y. 10022Phone: (212) 688-8555 / Fax: (212) 758-7215www.fragomen.com

Immigration Policy and Global Talent Global competition for talentGlobal competition for talent Globalization of human resourcesGlobalization of human resources Personal mobilityPersonal mobility DemographicsDemographics High skill deficienciesHigh skill deficiencies

Governmental Response

Dwarfed by bigger policy concernsDwarfed by bigger policy concerns irregular migrationirregular migration ethnic pluralismethnic pluralism assimilationassimilation refugees & displaced personsrefugees & displaced persons border protectionborder protection security concernssecurity concerns

Labor migrationLabor migration high skilledhigh skilled essential workersessential workers matching supply and demandmatching supply and demand

Labor considerationsLabor considerations labor market impactlabor market impact immediate displacementimmediate displacement long term effectlong term effect anecdotal v. empirical anecdotal v. empirical

Competition for Talent: U.K. Response Tier I – Highly skilled and Entrepreneurs Tier I – Highly skilled and Entrepreneurs

replaces highly skilled migration programreplaces highly skilled migration program Points driven systemPoints driven system

earningsearnings academic qualificationsacademic qualifications ageage English language requirementEnglish language requirement

Tier II – work permit categoryTier II – work permit category replaces current programreplaces current program academic qualificationsacademic qualifications job offer – prearrangedjob offer – prearranged earningsearnings English language requirementEnglish language requirement

StudentsStudents graduates of U.K. educational institutionsgraduates of U.K. educational institutions 12 month work permission12 month work permission application work permit afterwardapplication work permit afterward

Administrative StreamliningAdministrative Streamlining consular applications consular applications more user friendlymore user friendly corporate pre-certificationcorporate pre-certification

Permanent ResidencePermanent Residence 5 yr. for eligibility5 yr. for eligibility entrepreneursentrepreneurs English language requirementEnglish language requirement

Other Country Proposals: France

Work and residence permits combined for Work and residence permits combined for intra-company and intra-group transfereesintra-company and intra-group transferees

Both foreign and locally employed Both foreign and locally employed Valid 3 years with yearly verification of Valid 3 years with yearly verification of

salary and conditions of employmentsalary and conditions of employment Spousal work permissionSpousal work permission Students with advanced degrees given 6 Students with advanced degrees given 6

months residency rights to find employmentmonths residency rights to find employment

France con’t

Labor market test waived for students for Labor market test waived for students for salary above certain thresholdsalary above certain threshold

Ireland has similar provision with Ireland has similar provision with discretionary approval of work permit with discretionary approval of work permit with salary below work permit thresholdsalary below work permit threshold

Other Countries: Netherlands

Knowledge migrantKnowledge migrant Joint work permit and residence permitJoint work permit and residence permit Single agency processingSingle agency processing 5 year admission5 year admission Income criteriaIncome criteria

The U.S. – Failed Policy

Role of CongressRole of Congress H-1B cap exhaustedH-1B cap exhausted

degree holder cap reached 1degree holder cap reached 1stst day day advanced degree 3 weeks lateradvanced degree 3 weeks later plight of recent graduatesplight of recent graduates

Legislative Relief

2006 – 1092006 – 109thth Congress Congress Comprehensive reform passes SenateComprehensive reform passes Senate Enforcement only passes HouseEnforcement only passes House 700 miles of fence and priority for 700 miles of fence and priority for

athletesathletes

2007 – 1102007 – 110thth Congress Congress Comprehensive reform rejected by SenateComprehensive reform rejected by Senate Opposition to legalization from rightOpposition to legalization from right Opposition guest workers from leftOpposition guest workers from left Shift from family-based to employment-based Shift from family-based to employment-based

migrationmigration Drastic departure from EB to pointsDrastic departure from EB to points Restrictions on H-1B/L-1B categoriesRestrictions on H-1B/L-1B categories

SKIL Act – temporary workersSKIL Act – temporary workers Increase H-1B cap to 115,000Increase H-1B cap to 115,000 Market adjustment to 180,000Market adjustment to 180,000 Exempt U.S. advance degree graduatesExempt U.S. advance degree graduates 20,000 cap for non-U.S. advance degrees 20,000 cap for non-U.S. advance degrees

STEMSTEM Extend student practical training to 2 Extend student practical training to 2

yearsyears

SKIL Act – permanent residenceSKIL Act – permanent residence Increase employment-based preferencesIncrease employment-based preferences Exempt U.S. advanced degree STEMExempt U.S. advanced degree STEM Exempt non-U.S. advance degree STEM Exempt non-U.S. advance degree STEM

with 3 years experience U.S. employerwith 3 years experience U.S. employer

Proposed point systemProposed point system Only for permanent residenceOnly for permanent residence Occupation (specialty or high demand)Occupation (specialty or high demand) U.S. employment in STEM or health occupationU.S. employment in STEM or health occupation Employer paying at least half of feeEmployer paying at least half of fee ExperienceExperience Age (25-39)Age (25-39) Education (3 levels)Education (3 levels) English (2 levels) and civicsEnglish (2 levels) and civics Relationship to USC or permanent residentRelationship to USC or permanent resident

Temporary Worker restrictionsTemporary Worker restrictions Non-displacement and recruitment attestations for H-Non-displacement and recruitment attestations for H-

1B1B Prevailing wage determination for L-1BPrevailing wage determination for L-1B Requirement that H-1B and L-1’s cannot exceed 50% Requirement that H-1B and L-1’s cannot exceed 50%

of workforceof workforce Restriction on outplacement of L and H-1B workers Restriction on outplacement of L and H-1B workers

where indicia of employmentwhere indicia of employment Prevailing wage at least level II OES wagePrevailing wage at least level II OES wage Increase H-1B fee to $5,000 for training and educationIncrease H-1B fee to $5,000 for training and education

Worksite EnforcementWorksite Enforcement Verify status of all new hires (18 months Verify status of all new hires (18 months

effective date)effective date) Verify all existing employees (3 year effective Verify all existing employees (3 year effective

date)date) Standardize documents issued by states with Standardize documents issued by states with

biometricsbiometrics Commence work on tamper-proof social Commence work on tamper-proof social

security cardsecurity card

What now – legislation ?

Enforcement only billsEnforcement only bills Piecemeal legislation – AgJobs, DREAM Act, Piecemeal legislation – AgJobs, DREAM Act,

SKIL Act, EnforcementSKIL Act, Enforcement Recapture unused EB numbersRecapture unused EB numbers Increase H-1B capIncrease H-1B cap Extend practical trainingExtend practical training Verification system sunsets November 2008Verification system sunsets November 2008 Legislative vehiclesLegislative vehicles

Government responseGovernment response State employee verification legislationState employee verification legislation Social security no-match lettersSocial security no-match letters E-verify and enforcementE-verify and enforcement ““get tough” attitude in adjudicationsget tough” attitude in adjudications Strengthen border securityStrengthen border security Pre-screening of Visa Waiver applicantsPre-screening of Visa Waiver applicants Trade agreementsTrade agreements

Employer responseEmployer response Adjusting recruitment to meet H-1B crisisAdjusting recruitment to meet H-1B crisis Contingent offers/training abroadContingent offers/training abroad Pre-planning to be preparedPre-planning to be prepared Multiple filings/pre-registrationMultiple filings/pre-registration Long term consequencesLong term consequences Possibility of practical training extension to 29 Possibility of practical training extension to 29

monthsmonths

Conclusion

Competition for talent not top priorityCompetition for talent not top priority Progress modest but U.S. moving Progress modest but U.S. moving

backwardsbackwards National politics v. needs of employersNational politics v. needs of employers Employer community needs to raise Employer community needs to raise

mobility as a major competitive issuemobility as a major competitive issue