Not welcome

It is critical to the competitive advantages of major businesses operating in either the US or UK that they are able to hire talented employees from outside those jurisdictions. Yet these two crucial global business centres are beset by complicated, strict and at times unco-ordinated immigration systems that make the process frustrating at best and damaging to business plans at worst.
The US immigration system is not coherent, but a patchwork of laws that are often unfriendly to those it should most be encouraging. For example, there is no non-immigrant visa classification to facilitate investment unless the investor comes from one of 80 countries with a treaty or special agreement with the US.
Investors fortunate enough to be from one of those countries and therefore qualifying for entry in the investor category will find that status does not lead to eligibility for permanent residence, unless the applicant qualifies under the onerous provisions of another visa programme. That normally requires a minimum investment of $1 million and proof that the move has resulted in employment for 10 new US workers.

Small errors

While this programme is being revamped to make it more investor-friendly, these basic requirements remain unchanged unless one invests in specially designed regional centres.
A highly qualified professional seeking entry to the US based on a job offer by an American company will find the visa under which the potential employee would normally qualify is only available for limited periods because of quotas. This year, the limit was reached by mid-June and applications will not be accepted again until the beginning of next April, and even then only for work beginning from the next federal fiscal year on 1 October 2013.
Global companies seeking to transfer skilled employees to the US are not having a much better time. They confront strict Citizenship and Immigration Service officials who interpret regulations narrowly, resulting in companies being unable to predict whether key personnel can be transferred to the US.
Generally, individuals seeking to qualify for permanent residence based on employment must obtain Department of Labor approval, which requires employers to advertise, perform three other forms of recruitment and prepare a fully documented record of its efforts to test the US market. Even the smallest of errors is likely to scupper the process as government adjudicators are so consumed with a fear of fraudulent applications, they are consistently hostile to businesses – especially small enterprises – seeking to qualify applicants.
Across the Atlantic, the situation in the UK is hardly less complex. Generally the precursor to being able to employ a worker from outside the European Economic Area and Switzerland is for the business to register as a sponsor with the British government’s Border Agency, involving a detailed and time-consuming verification exercise to establish that the business is approved as trustworthy and capable of fulfilling its sponsorship duties.
Indeed, that approval process can take many months with more time following for a ‘certificate of sponsorship’ to be issued to a prospective employee and ultimately for the employee to be allowed to apply for and obtain a visa. Therefore, businesses must assess early whether it is advisable to obtain a sponsor’s licence – they should not wait until they have identified a prospective recruit or intra-company transferee. The long delay could lead to the prospective recruit deciding to stay with a current employer or to join a different company.
The current British government’s approach to immigration is generally hostile, except in relation to investors and entrepreneurs willing to invest at least £1m in the UK – in which case ministers have rolled out the red carpet.
The UK’s immigration rules are complex and change with great regularity. The same can be said regarding related Boarder Agency guidance, which is in many instances littered with inaccuracies and is inconsistent and generally not drafted with certainty or depth of thought. Notwithstanding, that guidance is treated as binding and often the only way to challenge agency decisions is through threatening or commencing legal proceedings.

Nuances

There are nuances in the way UK immigration law is structured, meaning what is best for employers is not always best for employees, and vice versa. For instance, some visas under the UK’s points-based immigration system are quicker and easier to obtain – which may benefit an employer who needs to hire quickly – but are conditional on a migrant worker leaving the UK after only six or 12 months. On the other hand, there are types of visa that can take longer to obtain but can be extended and allow a migrant worker to live and work in the UK for up to five years.
Irrespective of whether a sponsorship or non-sponsorship immigration route is used, extreme care should be taken to ensure compliance with all applicable laws.
Where the sponsorship route is pursued, failure to comply with its duties can have drastic consequences. For instance, if a business sponsoring and employing 100 migrant workers seriously breaches its duties, its licence could be revoked instantly, and it could be forced to dismiss all its sponsored employees. Those employees then would have to leave the UK unless urgent remedial steps were taken. The situation is compounded by the risk of negative publicity and of being sued for negligence by the affected former employees.
Long-term immigration planning is necessary in relation to both US and UK immigration to ensure business goals are not undermined.

David Grunblatt is a partner at the US immigration department of law firm Proskauer Rose and Edward Wanambwa is a partner in the UK immigration department of London-based law firm Russell-Cooke. Avram Morell, a Proskauer Rose special immigration counsel, also contributed to this article