With the benefit of over 15 years of
research and tens of thousands of votes from clients and private
practitioners, Who’s Who Legal takes a closer look at developing trends
in the corporate immigration legal marketplace worldwide.
GLOBAL ACTIVITY
The past 12 months have proved an
interesting time for corporate immigration practitioners worldwide. The
field has seen a marked shift in the political attitudes towards
business immigration, not always for the better, and regulatory changes
have affected the type of work and level of expertise being demanded of
lawyers.
In keeping with the findings from our
previous years of research, 2012 continues to strengthen the trend that a
more globalised business world is assisted by the transfer of workers
and skills. The talents of legal practitioners who can navigate local
and international law and regional political nuances are more in demand
than ever.
We feature 441 inclusions this year, compared to
324 in 2008, which shows a 26 per cent increase in the numbers of
lawyers we identify as leading specialists, as seen above in chart 2.
Further, the corporate immigration landscape continues to be split
between a few dominant global firms, such as Fragomen and Berry Appleman
& Leiden LLP, and smaller boutique – often solo – practices. Over
the past four years we have traced an increase in the number of firms in
our research: 56 more firms and five new jurisdictions make an
appearance, reflecting the faster pace of expansion in law firm
departments.
Last year we reported that the protectionist
approach of governments had blurred lines between socio-economic
migration and corporate immigration taking place. This was evidenced in
the renewed visa quotas in certain industries and countries. This year,
once again, the global legal marketplace has had to react to tougher
policies on corporate immigration. According to the lawyers we spoke to
the nature of this work has become increasingly difficult to predict and
administer, and the relationship between lawyers and local immigration
agencies continues to be strained by bureaucracy and anti-immigration
agendas.
DEVELOPMENTS & TRENDS
In North America, lawyers reported that the
US Department of Labour and the US Citizenship and Immigration Services
agency have invested heavily in the auditing and enforcement of
workplaces to ensure employers comply with worker pay and eligibility
criteria. The economic downturn resulted in many businesses scaling down
their overseas recruitment, and governments and agencies taking a more
guarded approach to inbound migration by raising standards and adding
more scrutiny to the process. As a result, corporate immigration lawyers
are seeing a demand for compliance training, responses to enforcement
investigations and advice on internal solutions. As one lawyer remarked,
corporate clients fear that the “government will come knocking on
doors”, and the penalties for non-compliance of immigration rules can be
ruinous for small and medium-sized companies. In addition, hiring
figures have diminished in the public sphere, along with state budgets,
but private-sector employers are still prepared to make crucial,
strategic hirers and recruit from abroad, keeping lawyers busy.
As the US presidential elections get
underway, lawyers forecast an overtly political agenda when it comes to
policy but exactly how this will play out remains unknown. Some lawyers
predict minor regulatory bills in an attempt to take advantage of a lame
duck Congress just before November, but others think it is highly
unlikely any pro-immigration proposals will get to Congress before the
election – even for the Democratic Obama administration pro-immigration
rhetoric could be political dynamite. But almost all of our US
contributors foresee major political grandstanding on the matter with
little significant, and most importantly, federal change. During
economic downturns, immigration an injection of highly skilled workers
could aid recovery, but the lack of a comprehensive, nationwide
corporate immigration law is still regarded as a handicap in the
country, and this is expected to be the case for the medium term future.
In Europe, agencies refuse applications to
sustain low quotas in a bid to prevent worsening national unemployment
levels, so lawyers are also seeing compliance, auditing and appeals
work. According to our research, the most pronounced case is in Italy
where lawyers explained that this year’s policy will, in effect, result
in a cancellation of non-EU inbound immigration. In Germany, a new
residence permit was introduced in September 2011, switching the process
to an electronic system but this has led to an increase in bureaucracy
and higher costs for clients. The complexity of the system means more
incorrect submissions, more time and eventually the need to involve
lawyers. Despite this, immigration rates soared by 19 per cent in early
2011, according to the country’s federal statistics, which may have been
a factor in the three per cent economic growth rate and the fall in
unemployment figures last year, still making Germany a prime relocation
spot for skilled labour.
Equally, the lawyers that we spoke to in
England describe the increase in investor visas, compliance and sponsor
licences work over the past 18 months. The government is encouraging big
moneyed investors into the UK to boost the national economy but,
according to the lawyers here, the potential benefits are being eroded
by frequent and poorly disseminated regulatory and legislative changes
and restrictive quotas that are aimed at the more general immigration
body. One lawyer in London stated, “I get e-mail memos every week and
the change in legislation is sometimes communicated in a footnote.”
Ultimately, lawyers expect caps and quotas to remain in place until
there is a change in government, or a change in immigration policy
towards non-EU workers.
Looking to the near future, European business
immigration lawyers expect significant changes following the adoption
of the single permit directive, which implements a common immigration
policy, creating more rights for non-EU workers legally residing in EU
states. Further, lawyers hope the European Blue Card will ease
intra-company transfers and help secure employment for at least three
years. The goal is to simplify migration procedures and give migrants
employment-related rights. Lawyers are optimistic about the developments
but continue to call for a positive political attitude towards
immigration in order to meet with the challenge of a widening global
economy.
In general, activity levels seem to be
determined by the government’s approach towards inbound corporate
immigration. In Mexico, the corporate immigration bar is relatively
small but effective: lawyers successfully lobbied for a new immigration
law this summer which should resolve some of the administration and
transparency issues being experienced in the system. Israel’s small
immigration bar is battling against a similar short-sighted policy: caps
affecting intra-company transfers have been lowered in response to a
real or perceived abuse of the system, lawyers explain. Australian
lawyers reported that the bulk of their work is focused on the
Asia-Pacific region, or on student-turned-worker migration to and from
the UK. A lack of transparency in the system has created difficulties:
the process is in need of more legal involvement and advice as
applicants face rejections without receiving clear reasons, which for
businesses means repeated time delays and costs. But lawyers do not
expect any positive developments this year or next, as the governments
stay in power.
Countries that are experiencing rapid
economic growth rely on labour mobility as an essential sustaining tool.
Last year, as part of its growth agenda, Brazil reduced the minimum
investment needed for foreign nationals who hold managerial positions in
companies to obtain permanent visas. Since its implementation in
August, the resolution has created more investor, intra-corporate
transferee and dependants’ visa work, and with the five per cent GDP
presently being fuelled by an increase in minimum wage and consumer
confidence, lawyers foresee more work in the coming year.
Despite its seven per cent economic growth
India is struggling to counteract the affects of a ‘brain drain’ of its
IT, finance, science and academic talents. According to one lawyer, a
consolidated regulated work permit is greatly needed: the current
requirement that an employment visa can only be granted where a local
citizen is not available for appointment is preventing much-needed
inbound skilled labour and is delaying fast-track processes. Lawyers
agree that the immigration requirements need reviewing.
The majority of our contributors see work
from the high-tech, engineering, IT and financial services –
particularly intra-company transfers and visas – as forming the bulk of
their transactional work. Lawyers explained that the key to a long-term
clientele is to help them achieve their objectives at a reasonable cost
and therefore keep them trading: good corporate immigration lawyers help
businesses to secure the labour they need, in order to ensure they stay
in business, and in doing so secure future work for themselves.
THE FUTURE OF THE IMMIGRATION BAR
As a result of tougher enforcement from
agencies and governments worldwide, businesses are looking for ways to
circumvent cap limits and onerous rules, and so look for creative and
experienced corporate immigration lawyers to advise them, not only on
immigration matters but also on hiring strategies. Although there is
often some overlap with employment, labour and management law, lawyers
explained that due to the way the practice is directly affected by
political and economic factors, it is no longer viable to have it as
part of a greater employment practice – immigration is becoming ever
busier and more specialist, and the need for expert counsel is becoming
greater. The result is an increase in specific boutique firms and
specialists.
Compared to our other publications, the
number of firms we list in this edition is closer in figure to the
number of entrants. The increased size and competition in the
marketplace has led to more competitive price and quality control as
those who are most highly regarded in the industry (and our research)
vie for major clients and strive to earn international reputations. As
we reported last year Fragomen and Berry Appleman & Leiden LLP were
the only firms to boast over nine lawyers in the edition, and as can be
seen in chart 3 above, this year the same is true. Only a handful of law
firms have offices outside their founding cities or country, signalling
that lawyers, particularly in the US, tend to focus on state or local
practice.
Smaller firms tend to concentrate on one
professional industry, such as IT, but a few larger and expanding firms
in our research, such
Laura Devine
Solicitors, have the manpower to diversify within the immigration field
into areas such as entertainment, sports and medical professionals, on
both sides of the Atlantic, and so protect against loss of business
caused by fluctuating economic or political conditions. Further, they
have the means to establish an international presence, a trait that is
lacking most notably among the firms in this practice area.
In short, the increased sophistication of
commerce calls for more widespread expertise, data reporting and
processing. It is no longer practical to run a corporate immigration
service as part of a labour and employment practice, the work needs
expert counsel. Lawyers do not predict any meaningful change until there
is a shift in political attitude viewing immigration, corporate or
otherwise, as less of a social problem and more of a long-term business
solution.
