The American Dream – shattered?
Over the past three decades, Atlanta has grown immensely through investment from around the world, both small and large, and a myriad of nationalities live and work in the Metro Atlanta area and support local communities. The Mayor’ s Office has placed a priority on its international relations and welcoming initiatives, and immigrants and foreign direct investment have shaped both the economy and character of the city: German and Asian car manufacturers and automotive supplier production facilities, Indian-owned software and trading companies, European and Latin- American interior designers, Atlanta Hartsfield Jackson International Airport, restaurants from all over the world, and so on. Wherever you look, you will find an investment from abroad, making our communities in and around Atlanta more prosperous, more pluralistic, more powerful.
But the United States, despite its history and mission as a global mobility hub, have one of the strictest immigration systems in the world. As a business immigration lawyer, I dare say: It is broken. Narrow immigration laws and a massive number of Executive Orders also put Atlanta’ s immigrant community to the test. People do not understand why the federal and local governments target and deport undocumented immigrants instead of“ legalizing” them. But often, there is simply no way for an individual to come legally to the US. In addition, the typical filing fees for petitions for work authorization amount to thousands of dollars, not to mention the legal fees which are equally high. Ironically, the jobs are here, and skilled labor is needed in all industries, from technology to health care, from agriculture and construction to manufacturing and distribution. We live in a global world, and as U. S. companies export to other countries, they need the support from nationals of these countries who have the expertise as well as the language skills. But in many cases, a foreign national simply cannot qualify for legal authorization to work in the US, due to quota limitations and narrow, nonflexible categories of qualification.
Limited numbers, restrictive laws
In the days of the Olympics, quota number limitations were not a problem when employing professionals. Now, U. S. companies who want to employ professionals with a bachelor’ s degree are limited to 65,000 with an additional 20,000 allocated to U. S. master’ s graduates. For example, if a U. S. law firm wants to employ a lawyer from another country who graduated with an LLM or JD in the US, they must apply for one of the limited quota numbers that is available once a year – with a chance of success of about 20 %. Similarly, America is sending talented students who have completed degrees in the U. S. back to their home countries, even when they have a job offer from a U. S. employer and can contribute immensely to our communities.
IN THE PROFESSION
Global companies who want to transfer Executives, Managers, and Specialized Knowledge personnel can apply for work authorization in the U. S. for employees who have worked with the company abroad for more than one year. But qualifying credentials are often questioned: We recently saw the denial of a petition filed by a global company for a product manager who had been working with the company for several years and whose expertise was urgently needed in the US. The Government indicated that it did not believe that he was a manager, even though he was the head of a team of multiple professionals and responsible for product development in a highly technical area. Certain foreign-owned companies from countries with treaties with the US can transfer“ essential employees.” But the requirements vary wildly from country to country, and the decision is left to the discretion of the consular officer responsible for the adjudication. The same applies to applications of Canadian and Mexican professionals for visas based on the US Canada Mexico Agreement( formerly the North American Free Trade Agreement or NAFTA) that are reviewed by Customs & Border Protection( Canada) and Consular Officers( Mexico). Top athletes, actors, scientists, and similar professionals“ who have risen to the very top of their field” can apply for extraordinary ability or specialty visas. Another strictly limited category covers healthcare workers and employees in the fields of agriculture, hospitality and construction; here, evidence of recruitment of U. S. workers is required, and there are also quota number limitations.
And what about the famous“ green card”? Unfortunately, the process to obtain a“ Green card”, or permanent residency, even if all requirements are met, can take many years. An Indian software engineer, working for a successful company, will probably have to wait 15 years until his employment-based petition and application for permanent residence will be approved. And marriage-based green card applicants need patience, too: The petition of one of my clients, a U. S. citizen who wishes to bring his wife from Germany to the U. S., has been pending for nearly two years.
What can we do about it?
Education is key. I tell students in my business immigration class at the University of Georgia School of Law that learning about immigration law is beneficial for every lawyer, as it touches many areas of the law. Practitioners in all fields, not only immigration lawyers, need Photo to credit understand: Daniel Cole / the Invision law / AP to make the right decisions to support their clients, foreign investment and global mobility. For example, employment lawyers can negotiate contracts with foreign nationals who do not qualify for a visa authorizing them to work in the US, binding the company until a visa can be secured. M & A lawyers must understand a company’ s liability both in the assumption of the workforce and through I-9 / E-Verify compliance. And criminal lawyers must
www. atlantabar. org THE ATLANTA LAWYER 21