Throughout his reelection campaign, President Obama promised that overhauling the nation’s immigration laws would be at the top of his legislative agenda should he win a second term. Now, with that second term under way and momentum for reform building, the legal community is sitting at attention.
In a speech scheduled to be delivered Tuesday afternoon at a Las Vegas high school, the president was to outline his ideas for addressing what has been a knotty political issue. The speech came a day after The New York Times reported that a bipartisan group of U.S. senators had crafted a package of proposals that includes both stricter border security and a pathway to U.S. citizenship for the millions of illegal immigrants now residing in the United States. A second set of lawmakers, according to the Times, is set to introduce its own bill sometime this week aimed at tackling the issue of how to increase the number of visas available to highly skilled legal immigrants who work in the technology and science arena.
For law firms focused on immigration law—including Am Law 200 firm Fragomen, Del Rey, Bernsen & Loewy—any reform legislation could have a major impact. The Am Law Daily spoke with Washington, D.C.-based Bo Cooper, a Fragomen partner who heads the firm’s government strategies and compliance group, about immigration reform’s potential implications for the firm and its clients. What follows has been condensed and edited for grammar, style, and clarity.
How is Fragomen preparing for potential changes to immigration laws?
Helping clients that have major needs for foreign talent shape this legislation is a big part of what we’re doing all day, every day right now. Our clients range from those who just want to get their antennae up and know what might be coming, so that they can plan and anticipate and know what to look out for, to clients for whom it is very, very, very important to go and shape these changes so that they can more easily get the foreign talent they need and help defend against changes that would be harmful to their talent needs.
What are some of the implications of potential reforms as far the clients in that second category?
Most of our firm’s clients have a need for professional talent—usually with high levels of education and usually in specific fields. Often those are fields where we’ve got a skills gap in the United States. So, for example, we’ve got clients who are creating more jobs in the STEM (science, technology, engineering, and math) space than they can fill with those who have the appropriate degrees among the American pool. What those clients are proposing is, they’re trying to go and help ensure that Congress will modernize access to the visa programs that they need to hire this professional talent. Most of those programs are subject to limits that were set in 1990, 23 years ago, and they were set for the 1990 economy. And they just don’t stretch as far as demand in our economy today.
Then there are a lot of compliance issues that employers need to be alert to. Immigration compliance is already a fairly complex endeavor, ranging from taking the appropriate steps to ensure that your workforce is authorized to work to making sure that you have observed the complex wage and other kinds of terms and conditions [and] requirements that surround many of these complex visa programs. Compliance is a tough thing to be sure you’re on top of and it takes a lot of resources and a lot of time. So, understanding and helping to shape changes to those kinds of rules is also important to clients that.
How does the firm make sure its lawyers are up to speed on any changes to immigration laws?
We have a process for keeping the lawyers in our firm abreast of what’s happening, but there’s a lot of daylight between where things are today and where things [will end up] if, and when, there is actual legislation. We’ll be focused on making sure that our colleagues in the firm and our clients are up to date on what’s happening as things evolve. Once things begin to take a final shift, there’s all kinds of things that people are going to have to learn in a great deal of detail—both clients and attorneys in the firm. For example, clients are going to need to know what it’s going to do to their recruitment cycles: when they can recruit; when they’re going to have access to visas; what, if any, additional requirements they’ll have to fulfill before having access to certain visas; what additional steps they’re going to have to take to verify the eligibility of their workforce to be employed.
It sounds like you’ve already seen some uptick in client work with these reforms on the horizon. Do you expect that to continue?
I definitely think there’s going to be more work coming in, because more and more employers are realizing that their talent needs and their talent acquisition strategies—and their global mobility needs and strategies—are very high on the corporate policies list right now. More and more companies are realizing that they’ve got to make sure that the human resources environment is one that fits their business needs. I think more and more companies are getting into motion now to make their needs known and make their voices heard.
At what level has the firm already been involved in working with lawmakers to try to shape proposed policy changes?
We have clients for whom we get fairly well involved with the [policymakers] and let them know what the company’s imperatives are—why it’s important to the U.S. economy and the U.S. worker for these kinds of changes to be incorporated into reform. So, yeah, we’ve been fairly active in interaction with policymakers and will continue to be.
While some of the proposals being advanced have bipartisan support, do you still expect major political challenges or legal fights around any new policies?
I think it’s going to be a wild game and it’s way too early to call the bookies. There will definitely be obstacles to passage. And I don’t think anyone is really laying odds on final passage, but what’s certain is there is going to be a debate.
What will Fragomen’s role be in that process?
Fragomen’s going to be very active in working on behalf of the clients to shape how things come out.