Legally Speaking: Andrew Greenfield

Andrew Greenfield is managing partner of the DC office of Fragomen, Del Rey, Bernsen and Loewy, a law firm that focuses exclusively on immigration. As one of Washington’s top immigration lawyers, Greenfield counsels a broad range of domestic and multinational employers on all aspects of US immigration policies and regulations. Though the future of comprehensive immigration reform is uncertain, there’s no question it’s a controversial topic. Here, Greenfield discusses the problems in our current system, and the changes he thinks should be made, versus the ones he thinks Congress is actually likely to pass.

Some of your clients are multinational corporations that operate in many parts of the world. How do US immigration laws compare to policies in other countries?
The immigration laws of the United States are pretty developed and have gone through many iterations of change over the past 30 to 40 years. What we are seeing now in places like India and China with burgeoning economies, is that they’re at a point where their governments are focused on developing and having their immigration systems evolve. That obviously requires a lot of vigilance and monitoring on our part, so that when our multinational clients are moving employees into those countries, we’re aware of the issues they may face.

How difficult is it for an immigrant to get the correct permit to work in the United States?
It really depends on the nature of the job that’s being offered, and the nature and background of the employee. When you’re talking about professional-level employees or employees who have worked for a multinational outside the United States for long periods of time, there are more options. But bringing in lesser skilled workers without university degrees, working in domestic service and other types of labor, it becomes much more difficult.

There are challenges, though, even in the professional level category. There’s the H-1B visa program, which is designed to permit foreign workers with university level educations to enter the US to perform professional level work that requires their degree or specialization. H-1B visas are limited by quota. Prior to the recession, that quota had been reached very early in the year, such that employers couldn’t obtain H-1B visas for employees for most of the year. But now H-1B visas are readily available.

You see a direct correlation between the economy, unemployment rate, and demand for H-1B visas. As employers are hiring fewer US workers, they’re also hiring fewer foreign workers. I think that’s such an important point for people to understand. A lot of times I feel that the immigration system and the H-1B visa program get an unfair reputation for being a vehicle for US employers to import inexpensive labor at the cost of US labor, but you can see in black and white that employers are simply not using this program, which has strict US worker wage protections, like they used to, an indication that demand for H-1B visas is based on real business need.

What reforms do you think need to be made to our immigration laws?
There are some things that I think should happen, and some that I think are going to happen. Unfortunately, they’re not the same.

There needs to be a recognition by the US government that even though the general unemployment rate is as high as nine percent, the unemployment rate for university educated people in STEM (Science, Technology, Engineering, Mathematics) fields is much, much lower. The government needs to create different avenues to make sure that multinational companies have the ability to move university educated, highly skilled workers into the US as they need them. I hear it all the time from clients, especially those in the information technology field, that they find it incredibly difficult to recruit locally in the United States in the STEM fields. Part of that is a failure of our US educational system, that we’re not inspiring enough young people to go into these fields.

In terms of what I think will happen, we are seeing an incredible focus now on enforcement of immigration laws with respect to compliance for employers. We’re seeing a very large increase in government audits and investigations of employers to ensure they’re not hiring unauthorized workers. In 1996, Congress created the E-verify program, which is essentially a database that allows employers to check the work authorization of their new employees. E-verify is primarily a voluntary program. But we are starting to see a lot of discussion on Capitol Hill about making E-verify mandatory for all employers or for a much larger cross-section of employers. I don’t have great hope that comprehensive immigration reform will pass any time soon. However, if we are going to see some type of immigration reform passed, I think it could be around E-verify.

And that’s not a good thing?
Ensuring compliance with the law is a good thing, but my biggest concern has to do with the administrative burdens employers will face as they work to integrate another major program into their large national operations, and the fact that the program is not perfect.

It does sometimes give false positive results, which I imagine we will see more of as the program expands. For employers in sectors that might have a high level of illegal workers due to the availability of stolen documents or fraudulent IDs, E-verify may very well quickly identify those workers and there could be certain industries that wind up losing a significant percentage of their work force, with consequences to the US economy that are unknown right now. Obviously, we need to have enforcement mechanisms in place to ensure compliance with the immigration laws of the United States, but that doesn’t mean there are not going to be practical, far-reaching consequences of such a program.

How has your practice changed as the laws have changed?
Even absent Congressional action with regard to E-verify, individual states have and continue to enact their own laws mandating the use of E-verify. The Supreme Court just ruled that Arizona’s law mandating E-Verify is constitutional. As a result, obviously Arizona is going to continue to require employers to use it. But that decision also sends an important signal to legislators in other states that they can do the same thing. For most of us who have been practicing immigration law for a long time, the practice has been almost exclusively a federal practice. Immigration laws traditionally are enacted by Congress and executed by US agencies, but for the last of couple years and continuing going forward, immigration lawyers need to be increasingly knowledgeable of state laws as well. Our field certainly is expanding and broadening.

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