Andrea Elliott on the Future of Business Immigration in the US

Immigration has allowed the world to integrate and share talent across all jurisdictions, but more recently, the topic of immigration has been a negative one; it has caused concern for those who worry their jobs are being snatched away and that it is causing terror threats and attacks. The debate is never-ending, but the recent actions of US President Donald Trump and his controversial stance on immigration has spurred on discussions to whether or not current restrictions are admissible. We discuss with Andrea Elliott about the recent Executive Order issued by Trump, the effects of this on business immigration and what else could be done to tighten immigration legislation. Winners of the Relocate Magazine prestigious annual awards, Best HR Supplier Team of the year in 2015 and Immigration Team of the Year in 2016, Andrea and her team of passionate immigration experts, embrace the constant changes in the world of Immigration globally. Here are her thoughts on major trends in global immigration today. 

 

How has migration shifted in Africa since you first began to practice? How do you see the continent’s progression shifting migration?

Migration into Africa has steadily increased. It was not a sought-after destination for years with APAC locations beating Africa out with cost and logistics infrastructure. As the migration of people to urban areas has increased, the need for industrial growth in areas such as mining, technology and infrastructure has kept pace. This growth has had the necessary outcome of a need for specialists; highly qualified individuals to establish, implement and develop a myriad of skill sets using a combination of the local workforce and expatriates. One of the key improvements we have seen, is the transformation of immigration, particularly in Southern Africa, as a vehicle to ensure knowledge transfer to the resident population. An excellent example of this is in both South Africa and in Ghana where a detailed Skills Transfer Plan is part of the work permit application process.

 

As you specialise in international immigration to and from many countries, can you comment on a certain country’s legislation which is ideal and should result in more countries being willing to adopt it for their nation’s benefit?

While European countries look for ways to close their doors and the United States argues about how many illegal immigrants to deport, Canada has always been an enlightened leader in the Americas for immigrants. A new “Express Entry system” greatly increases the weight given to offers of employment for people applying to become permanent residents.

For international practioners like myself, the gold standard has always been Singapore; it is a country that recognises that it needs to continue to attract talent and uses immigration as a positive beacon to attract skilled people to its small shores. Singapore has a very transparent immigration system, which makes it so attractive for business.

Recent changes to the law, while taking on the appearance of being protectionist in nature, have in fact codified and made clearer the occupations that the government deems necessary for Singapore to thrive. As is proudly stated by the Ministry of Manpower (fondly known as MOM): “Implementing fair employment practices makes good business sense. It is also the right thing to do in a workforce such as Singapore’s, with its diverse ethnic, religious, age and gender makeup.”

Although it is not a widely appreciated fact, Germany has been one of the most popular business immigration destinations in the world for some time now. It offers a standard process and while the language barrier may be an impediment for some, from an immigration standpoint, it is progressive and accounts for the largest population of immigrants in Europe. According to the Federal Ministry of Labour and Social Affairs, the current ratio in the working population is that one in seven has a migrant background.

 

Migration into developed countries is somewhat more restrictive than before – an argument for the reasoning behind this, is due to excessive illegal immigration. The negativity from this, thus makes it harder for those wanting to work internationally. What do you think can be done to eradicate this negative stance, in order to make those who wish to work internationally fairer?

I would argue that illegal immigration and legal immigration do not compete with other.

Why? Legal immigration practice, from a business standpoint, is based on requiring a specialised knowledge or rare skill set whereas illegal immigration could have any number of drivers, be they economic, family or seeking refuge from a dangerous home country. It is too easy to lump the word ‘illegal’ next to the word ’immigration’.

The result is often an incorrect debate about immigration (legal and illegal) being demonised as a “bad thing” for the economy, or “it’s taking local jobs” when in fact, the types of positions being recruited for are most often, being responded by foreign applicants as there are not sufficient locally qualified applicants for the high level of skills required.  For both economic and political reasons, the higher the skill level of prospective immigrants, the fewer restrictions governments tend to impose to entry.

To eradicate this negative stance or view of immigration, it is important to have an honest discourse about the benefits of legal, managed immigration. This topic is sadly dominated by politicians who use the word “immigration” as a football to bolster their own agenda.

In a 2016 Harvard Business Study , what we all know to be true was confirmed. Immigrants account for around a quarter of US entrepreneurs. Per the study findings, immigrants have a stronger will to succeed in business than “native born” Americans.

A fair discussion about the different types of migration of people, globally is the starting point. What is an immigrant versus an illegal immigrant?

Recognising that in our time, we are witnessing a human tragedy in Syria that is the cause of migration for safety from harm, also known as refugees: they are immigrants.

There are people who leave their struggling countries for brighter economic futures; some can enter wealthier countries without requiring a visa as in EU to EU nations: they are immigrants.

Yet others from countries in South America risk life and limb to cross deserts and rivers without visas to enter North America for better access to resources. Same facts, same circumstances, born in the wrong country: they are illegal immigrants.

There are those who leave their home country as a family member has moved to a new country based on family reunification principles; still others who can settle in a new country based on ancestry: they are immigrants.

And those who can afford to “buy” their new residence or passport of convenience: they are immigrants.

The field that we focus on, the corporate moves. People who move temporarily from their home to a foreign country and who are required to obtain a work permit prior to arrival: they are immigrants.

It is therefore very important to distinguish who we are talking about when we kick the immigration football around.

 

With developments (such as Brexit or Trump’s controversial policies) having the potential to transform immigration law, how do you see immigration law changing in the upcoming years?

In the USA, the immigration laws are now hailed as worthy of a Hail Mary “See you in Court” approach by our 45^th President. The biggest challenge is dealing with the constant change and uncertainty of execution. An Executive Order is a high-level strategy, the coal face execution thereof by the thousands of people empowered to enforce it, is as different every time as the officers trying to interpret it.

At the time of writing, there have been no less than five Executive Orders that have impacted immigration and tarnished the halo immigration proudly worn in a country made of immigrants.

An example of an area of concern for those who specialise in business migration is a sentiment that the State Department, with a directive from #45, could slow visas with longer background checks.

 

What changes are you most apprehensive about?

In a recent article in Slate, I found this quotation from Mark Joseph Stern most descriptive of the changes that we are facing: “The very concept of due process emerged from a desire to limit the king’s ability to order unlawful arrests. It appears we are returning to the days when the head of state can detain purported threats without a whiff of evidence that they have broken a law.”

 

Is there anything else you would like to add?

It has been three weeks since U.S. President Donald Trump signed his Executive Order “Protecting the Nation From Foreign Terrorist Entry Into the United States.” While the media is replete with daily stories surrounding the controversial move, in reality not much of lasting significance has happened yet. While Pro-Link GLOBAL is concerned – as many are – with the Order’s impact on refugees and US visa holders, our writing on the topic focuses on our corporate clients and the potential impact on their global immigration needs.

Here is our quick status update on where we stand now, and what, if any, impact the events of the past three weeks are having on the global marketplace. For a detailed and balanced analysis of the 27^th January Executive Order, see our widely-read Blog: “Trump Immigration Order: How It Does (and Doesn’t) Impact Global Corporate Mobility” here.

 

Status in the US – “SEE YOU IN COURT”

Without getting into all the intricacies of the numerous court challenges currently moving through the federal courts in various circuits and at multiple levels, here is a quick overview of where President Trump’s Executive Order on immigration stands in the US currently:

• Permanent Residents and Dual US Citizens – Shortly after the Executive Order was issued, Department of Homeland Security (DHS) and Customs and Border Protection (CBP) clarified that its provisions would not be applied to legal permanent residents or dual citizens of the US who are citizens from the affected nations (i.e. Syria, Iran, Iraq, Libya, Somalia, Sudan, and Yemen). The federal courts have likewise backed up that position with temporary restraining orders. The DHS and CBP are not denying entry to, nor pursuing deportation of, such individuals.
• Dual Citizens of Other Nations – Likewise, dual citizens of one affected nation and another unaffected nation are not subject to the Order. The CBP has issued specific guidance that the Order does not apply to citizens of the affected countries who are traveling on a valid passport issued by an unaffected nation.
• Refugees – While the Order has not been invalidated, the federal courts have temporarily suspended operation of certain provisions applicable to the Refugee Admissions Program (RAP). Currently, refugees already with entry authorisation from the affected nations are being permitted entry to the United States. However, the significant decrease of the fiscal 2017 refugee cap to 50,000 has not been stayed; with almost 30,000 refugees already admitted this year, new applications under the RAP will remain extremely tight.
• Valid US Visa Holders – Likewise, the courts have stayed provisions applicable to valid US visa holders from the affected countries. Holders of valid US visas who are citizens of the affected nations are being permitted entry to the US. All valid visas which had been revoked, but not physically destroyed, remain valid and there is no deportation action being taken based on the Order. The reported increased vetting of foreign nationals at the borders – including more frequent entry interviews – is being conducted by authorities under already existing policies and discretion. The Visa Interview Waiver Program remains suspended.
• New and Pending Visa Applications – The federal courts have also temporarily restrained authorities from refusing to process pending visa applications, or refusing to accept new visa applications, from citizens of the affected nations. However, it remains unclear at this point to what extent overseas US consular posts and in-country immigration authorities are continuing to process such applications.

Everyone should bear in mind that the current status is temporary and susceptible to change with little notice, as the issues are still in play in the courts.

Going forward, indications are that the Trump administration is going to proceed with a two-pronged response. First, administration lawyers will pursue overturning the several court orders, enjoining portions of the current Executive Order, the most significant being that in the Ninth Circuit. While the matter will likely culminate in a Constitutional show-down at the Supreme Court at some point, Pro-Link GLOBAL believes the administration will first attempt to argue the merits of its case at the Circuit and District Courts before risking a permanent setback at the high court.

Second, the administration has indicated that it will issue an additional executive action next week as a possible “end-around” the courts. Much of the basis for the court decisions on the Executive Order was the wide scope and general language of the Order. Pro-Link GLOBAL believes that the new executive orders in the coming weeks will cover the same issues, but contain much more detailed language to “court-proof” the measures going forward. We expect such new orders to contain a more detailed factual case for suspending entry from the affected nations, a narrower scope carefully omitting foreign nationals already legally in the US, and greater procedural details on how case-by-case exceptions will be made, omitting any preference for religious minorities.