3. Requirement to Use E-Verify
E-Verify is a relatively new government program whereby employers can obtain electronic verification from the government of an employee's authorized work status. This program remains voluntary for most employers.
The government would like to see this program become mandatory for all employers. Right now, it is required only for federal contractors under an Executive Order implemented in recent months.
Many employers are presently in the process of determining, with immigration counsel, whether to sign up for E-Verify while it is still a voluntary program. With E-Verify comes the right of ICE to inspect the employer's records without notice and the use of a government database that is not always accurate. One of the drawbacks of E-Verify is that employers can only do so for new hires; the employer gets no immunity from the government for its previously hired workforce. For employers in industries with a traditionally sizable illegal alien workforce—landscaping, construction, hospitality, to name a few—the peace of mind of knowing that newly hired workers are authorized employees likely outweighs any downside risks. For other employers, however, the downside risk may outweigh the potential benefits.
4. Quotas Don't Reflect Reality
The current quotas for immigrant and nonimmigrant visa categories, established by statutes decades ago, bear no resemblance to business realities in 2010.
For example, H-1B quotas are so low that, in a normal economic year with normal hiring patterns, employers have one day per year in which to file H-1B petitions for any and all foreign national professional employees whom they recruit from U.S. universities or from overseas. And, in many years, even if their application is filed on the first available day (April 1), employers are subjected to a random lottery since more applications are filed on the first day than there are visa numbers available. This system does not comport with business reality or with common sense.
Companies employing lesser-skilled workers, such as resort workers, landscapers, hospitality workers, etc., face similar quota problems under the H-2B temporary seasonal worker program. Even though these workers may be essential to the operations of the U.S. business, a separate H-2B quota that does not come close to meeting demand results in companies being unable to staff essential positions.
Equally outdated are the immigrant (green card) quotas. Let's say that an employer wants to employ a foreign national employee on a permanent or indefinite basis. In order to do so, the employer must satisfy the U.S. Department of Labor, through an extensive recruitment process, that it has been unable to find a qualified, interested, and available U.S. worker to take the position. Only if the DOL is satisfied that no U.S. worker is available to fill the position, and that the employer needs someone to fill the position immediately, will the DOL issue a labor certification. You might think that completing this process would result in the U.S. employer being able to hire the foreign national worker, whom it needs immediately, without delay. Not even close. Depending upon the education level required for the position and the country of the foreign national's birth, the foreign national worker may not be able to obtain permission to work for that employer for many years, possibly even a decade or more. This is hardly a sensible system, and the quotas need to be updated to meet the needs of a modern economy.
5. The EB-5 Regional Center Program
Let's say a foreign national wants to make a substantial investment in a business in the United States that will create employment for at least 10 U.S. workers. If the investment is at least $1,000,000 ($500,000 in high unemployment or rural areas), the law provides that the foreign investor can obtain a green card in the EB-5 category. However, largely because of a series of highly restrictive interpretations by USCIS, this immigration category has been underutilized.
Recently, the EB-5 category has become hot again because of substantial and increasing interest in the EB-5 Regional Center program. Regional Centers are government-approved projects—often construction projects—that USCIS has certified will provide substantial employment opportunities for U.S. workers, either directly or indirectly, in the community. An investor who invests the requisite amount of money—usually $500,000, sometimes $1,000,000—in a government-approved Regional Center may be able to obtain a green card more expeditiously than through any other means available. The Regional Centers have attracted large numbers of developers who, unable to obtain financing from traditional sources, seek capital inflow from foreign investors. These investors are willing to accept below-market returns because they are obtaining the significant benefit of a U.S. green card. This program is a classic win-win scenario: it provides a source of capital at a time when the capital markets are only reluctantly thawing; it creates infrastructure construction where it is sorely needed; and it creates jobs in a time of high unemployment. The popularity of this program is evidenced by the fact that the number of government-approved Regional Centers has more than tripled in the last couple of years.
While this program may provide maximum flexibility for an investor to live anywhere, work anywhere, or not work as that person chooses, and obtain permanent residence status for his or her whole family, the program is riddled with traps for the unwary. Immigration counsel experienced in dealing with EB-5 matters, as well as financial, business, tax, and/or security advisors, are highly recommended for foreign investors/prospective immigrants seeking to move to the United States under the auspices of this program.
The Obama administration has stated its intention to seek a once-in-a-generation overhaul of U.S. immigration laws. If that happens—and it is not only possible but likely that it will happen in 2010 or 2011—a whole new list of immigration law issues will arise. For the present, at least, the issues discussed in this article are important for business lawyers in assisting their clients in navigating a complex immigration law and enforcement landscape.