Easing the Global Flow of Talent: The art and science of connecting companies and capabilities in a dysfunctional immigration environment

Monday, November 30, 2015 - 14:08

Scott FitzGerald, Managing Partner of Fragomen’s Boston office, has built an enviable practice in one of the most politically fraught areas of our time: corporate immigration. He has played a key role in developing one of the world’s fastest growing law firms – a firm that has set the gold standard for corporate immigration work. Below he talks about the development of his practice, as well as the challenges and rewards of helping people cross national borders at a time when many prefer to erect legal and physical barriers to stop them.

MCC: You’ve served in leadership positions in several offices during your tenure at Fragomen. Can you please give us some background on your practice and your contributions to the establishment of Fragomen as a leader in the practice of immigration law worldwide?

FitzGerald: I was a second-year student at Fordham Law School when I joined the firm as a Summer Associate and law clerk in 1991. I had no experience with immigration law. After graduation, I started in the New York office, went on to run the Washington office, opened our Northern Virginia office, and returned to New York to help to grow our global group, including in Singapore and London, where I helped to open offices. Subsequently, I moved to our New Jersey office, where we started to centralize our global growth management. In 2006, I was asked to return to the U.S. inbound side of the business to run the Boston office, which at nearly 200 employees is now the fourth- or fifth-largest office of the 44 offices in the firm.

MCC: Among other roles at Fragomen, you are currently a Managing Director of Fragomen Immigration Services India Pvt., Ltd. Tell us about this role.

FitzGerald: Our data told us that a very significant portion of the transactions we did worldwide were India-outbound – to the U.S., to Australia, to Europe. To best serve the needs of our clients, we became very interested in having operations in-country. We now have staff in Bangalore and Kochi doing both inbound and outbound work. I comanage the practice there with Saju James.

MCC: Given the fraught national debate over immigration and the politicization of various immigration issues, it must be highly challenging for companies bringing in specialized workers from overseas. Give us the lay of the land a year out from national elections in which immigration is a key issue.

FitzGerald: It’s our biggest challenge. From my perspective, the country is extraordinarily dysfunctional when it comes to immigration, both skilled and unskilled. We continue to be a magnet for unskilled workers, many of them illegal immigrants, because there are thousands and thousands of jobs that remain unfilled in agriculture, construction and commercial cleaning. This has nothing to do with the business of our firm, but it definitely influences the public’s perception of what we do, which is to bring in skilled labor.

The fundamental question is: Do we have a shortage of IT talent in the United States? There are plenty of politicians and pundits who suggest that we have plenty of college graduates with degrees in computer science and the STEM fields. Speaking from a very substantial amount of experience, I don’t agree. Our clients – which at any given time could represent a substantial percentage of the Fortune 500 – will tell you that they struggle mightily to attract technical talent, and that they have many openings for such positions at any given time. They need a very sophisticated and structured immigration program to help them to fill the large gaps in those spots.

This is not only an issue in the U.S. but around the world, most recently in the United Kingdom. The UK government recently announced that they want to reduce net immigration from 250,000 to 100,000 people a year – both skilled and unskilled people. They’re putting extremely restrictive policies in place to facilitate this goal.

MCC: For many companies, immigration is their lifeblood. Do they need global programs? Is it better to treat different areas on a case-by-case basis?

FitzGerald: It’s gotten extraordinarily hard. From a program perspective, a company that’s a large user of the immigration system has to have to have a global program. That’s something that we specialize in – assisting large companies in setting up these multicountry immigration programs that help to facilitate the movement of personnel from one country to another. For smaller companies, it’s done on more of a case-by-case basis, and that gets into the individual’s credentials and also into the company’s need. One of the biggest challenges in the U.S. is counseling companies on when not to try to recruit and then need to sponsor a foreign national because, longer term, it’s going to be a real problem to keep them here due to such restrictive policies.

Every company – not only every major company but many, many companies – has foreign nationals working for it. Unfortunately, the U.S. has created a system that is so complex and burdensome that there is a very large and necessary market for what we do.

MCC: Focusing on policy and not political personalities, what’s the worst-case scenario for companies reliant on a smoothly functioning immigration system in the U.S.? What should talent officers be worried about? 

FitzGerald: Unfortunately, policy and personalities are one and the same, to some extent. You have the Obama administration, which very publicly announced that it was fed up with Congress’ disinterest in addressing any of these immigration issues and so went ahead with Executive Action that resulted in various programs, such as DAPA, DACA and, relevant to our practice, the extension of employment eligibility for certain foreign students in the STEM fields. I’m obviously very biased when it comes to this stuff, but I think it’s great. On the other hand, from a political perspective, it’s not good politics because it’s resulting in a lot of backlash, not only in Congress but also in the courts. These programs have been put in place by the White House out of political frustration, but unfortunately they’re under attack, and it’s not clear whether they will survive. We deal in that reality. How do you navigate the roadblocks that have been put in place by this political minefield? We provide trusted and valuable counsel to our clients to do just that.

MCC: Petition denials are on the upswing. What’s the cause and what can companies do?

FitzGerald: That is Exhibit A for the issues we’re talking about. There is a perception in Congress, in the media, even in the White House, that outsourcing is a bad thing. One of the main vehicles to facilitate outsourcing is the use of immigration programs. IT consulting companies bring in thousands of people for outsourcing engagements whereas Fortune 500 companies hire consulting companies to facilitate technology processes and programs. I think that if you have a problem with outsourcing and off-shoring, you should address the problem with outsourcing and off-shoring instead of attacking immigration, which is simply an ancillary process that is utilized by the industry.

When you talk about petition denials, the percentage of H-1B cases subject to what they call a request for evidence has been going up and up, especially in cases involving the placement of the visa beneficiary on the premises of a third party. This huge number of requests for evidence requires additional work, but the vast majority – approximately 96 percent of the cases – actually get approved every year. It’s a monumental waste of time. It’s almost like a tax. It’s the same thing with the huge increase in denials of what they call L-1 visas for intracompany transferees. Fifty percent get denied. To what end?

MCC: What is your advice for companies looking to recruit recent graduates who want to extend their visas and gain employment in the U.S.?

Fitzgerald: It’s an important question. If you are within the STEM fields, there is a path. You can extend what they call F-1 student status (and something called “optional practical training”) for up to 17, and soon to be 24, months. Therefore, if you have a degree in science, technology, engineering or math, you can stay here for, potentially, up to three opportunities to apply for an H-1B. Statistically, you’ve got a decent shot of getting it.

If you are not in the STEM fields, if you are an accountant, an MBA grad or a lawyer, then you probably only have one opportunity to apply for an H-1B visa and the percentages – last year it was 33 percent, this year it’ll probably be 25 percent – are not good. Our counsel to companies who are looking to recruit recent graduates is “Don’t hire folks who are not in STEM because you’re probably not going to be able to keep them here. That’s a pretty controversial but, unfortunately, accurate piece of advice.

MCC: Clients in the tech industry must be incredibly frustrated over visa availability, delays in green card issuance and related issues. How are you advising your clients? Is this just a matter of getting in line? What can a firm such as Fragomen do that others cannot?

Fitzgerald: It’s not the industry’s frustration as much as the employees’ frustration. It seems a little silly to tell someone that they need to be here for 15 years to obtain a green card. Typically, we can keep them here during that time through various extensions. The driver of the frustration is the spouse. If the employee is here on an H-1B, his or her spouse can’t work, and that causes a lot of consternation. Do the companies care? Sure, because they want their employees to be happy.

What can Fragomen do that others cannot? Nothing. However, what we’re very good at is setting expectations, explaining the process and helping companies comply by abiding with the required processes. We help them navigate the system to keep people here for as long as possible – on through to the green card – with everyone’s eyes wide open.

MCC: Can you share with our readers one or two of the most challenging or surprising cases you’ve worked on?

FitzGerald: One of the big challenges now, not only in the U.S. but globally, is the refugee crisis. That includes in Europe and on our southern border with the unaccompanied minors coming into the U.S. In Europe, it’s primarily a function of the conflict in Syria and the political distress in the Middle East. In the U.S., it appears to have been the result of a shift in our policy toward drug interdiction by clamping down on the movement of drugs through the Caribbean, which has subsequently shifted into Central America.

This has been personally meaningful to me. We do a ton of pro bono work, and one of the big needs has been getting Special Immigrant Juvenile status for these unaccompanied minors. As part of a program that we’re doing in cooperation with Justice Americorps, I’ve repeatedly found myself staring into the eyes of children who look very much like my 10-year-old daughter, who we were lucky enough to adopt from Guatemala. The reality of 10-year-olds representing themselves without counsel in immigration proceedings in a language that they don’t speak is appalling. The substance of those cases is challenging because you’re navigating multiple agencies and the politics behind it, not just the immigration service. This is very tough stuff.

To the administration’s credit, they’ve set up this program where they’re actually funding Justice Americorps, which hires attorneys to spend all of their time representing these kids. One of my jobs is to explain to the kids and their guardians that the money is coming from the government to pay for your attorney to fight the government to keep you here. It’s sort of ethically unique. It’s been very rewarding to work with these kids – one of the best parts of my job.

 

Scott FitzGerald, Managing Partner of the Boston office of Fragomen, Del Rey, Bernsen & Loewy, LLP and a Managing Director of Fragomen Immigration Services India Pvt., Ltd. sfitzgerald@fragomen.com