Joining the Client’s Journey – On the Land and On the Sea: The challenges are literally everywhere when it comes to meeting the immigration needs of global energy companies

Thursday, June 2, 2016 - 12:28

Many firms say they’re unique. Fragomen is unique. A global immigration powerhouse, the firm works hard to understand its clients’ needs and meet them – anywhere on the land or on the sea. For Kelly Cobb, Shawn Orme and Diego Archer, who work with the firm’s Energy Maritime Engineering & Construction Practice Group, that means onshore, offshore and everywhere in between – anywhere in the world. Below they discuss their very special practices. Their remarks have been edited for length and style.

MCC: Please tell our readers about your backgrounds and your roles at Fragomen.

Cobb: I've been practicing business immigration law for almost 20 years, primarily working with clients in the oil and gas industry. My practice has evolved from working with clients to process applications to developing global mobility programs that streamline processes allowing faster mobility while maintaining compliance. This includes immigration matters and offshore compliance throughout the world.

Orme: I've been practicing for over 24 years with a particular focus on the oil and gas industry. My time over the last 24 years has focused on counseling my clients both domestically and around the world. This is becoming critically important because the energy industry is increasingly focused on being more strategic worldwide, with a particular emphasis on building mobility programs that enable proactive program management decisions.

Archer: I worked in the International Criminal Tribunal for the former Yugoslavia. One of the crimes against humanity I researched was mass deportation. That attracted me to immigration. I discovered Fragomen when they were looking for attorneys with Latin American experience. I developed expertise dealing with engineering, construction, maritime, and oil and gas companies. It’s a fascinating area. We deal with the typical immigration issues companies face working on land, but also issues arising from work on the continental shelf and in international waters. Kelly, Shawn and I are all members of the Energy Maritime Engineering & Construction Practice Group.

MCC: What are some of the unique immigration challenges companies in the oil and gas industry face? How do they stack up against the issues facing companies outside the energy sector?

Cobb: One of the most unique challenges is how cyclical this industry is. When the industry is booming, you can’t find enough professionals to fill the positions. You’re bringing in lots of professionals from overseas. When the economy slows, companies have to let U.S. and foreign workers go. Then there’s an uptick and the hiring starts all over again. The most challenging part is advising clients on the best way to take care of their employees when they have mass layoffs, and then on hiring all over again once the economy picks up. I don't see that kind of cyclicality in other industries.

Archer: Kelly works mostly with clients immigrating into the U.S., while I work with companies assigning their staff to other countries. One of the biggest challenges we face is coming up with a form of rapid deployment for companies to go into locations around the world, especially when they're bidding for projects. That includes large economic powers and countries in the developing world that are trying to create new infrastructure or exploit their oil and gas resources. The immigration laws in parts of Africa and parts of the Middle East, Latin America and Asia may not be as sophisticated, so we have to create precedent and mold policy. For instance, the immigration laws in an African country may have been drafted 200 years ago. They don’t align with the pace of work today. We have to balance what’s available in the system and liaise with the government to create new policies that make it easier for companies to provide services on location.

Cobb: We face another unique challenge when the industry is in a slump. That’s when the U.S. Citizenship and Immigration Services (USCIS) tends to take a stricter interpretation of the laws in place, therefore making the process more difficult. Now it is more important than ever to work closely with clients to focus on developing different mobility strategies to define and meet business needs.

Orme: The oil and gas sector presents unique challenges. In addition to being historically decentralized, the areas into which oil and gas companies are seeking to mobilize are often remote and challenging. These challenges include inconsistent and confusing country guidance and laws, heavy fines for noncompliance, and difficult local conditions, which makes recruitment difficult and unpredictable.

Although these conditions are not likely to change in the short term, proper planning and guidance can significantly ameliorate these challenges. What I've found particularly effective to combat these challenges is really partnering with my clients to understand how their mobility process works generally, not just the visa and immigration component. This enables me to process map how a company bids for work and mobilizes personnel to meet the projects, and the interplay with the immigration/mobility team to ensure there is proper communication and a keen understanding of each group's role in the mobility process. This results in both quantitative and qualitative process improvements, saving both time and money. 

MCC: What qualities of the workforce make the immigration needs in the oil and gas industry unique?

Cobb: Foreign nationals who need to work in the U.S. have fairly common immigration needs. Depending on their country of birth, the government will scrutinize them more closely, which may make it more difficult, but that's not really industry-specific. The oil and gas industry is unique in that the workforce needs to be mobilized quickly and these professionals travel internationally more than many other industries. They need visas to come to the U.S., but they also need visas for two or three other countries all at the same time. Additionally, these professionals often travel to countries that can result in additional scrutiny and therefore delay when applying for visas. All of this has to be factored in during the early stages of project and bid development so that employees can be on the ground when needed.

Archer: In the oil and gas industry, many employees have obtained their skills by doing the job. They learn specific skills and they grow with the job. Then they get called to work on a project in another location, and that country may require a college education. We have to show that their experience is equivalent, and that the specific skills can’t be found in the country where they're going.

That’s one thing. Another thing we see is a requirement in a lot of countries to spend time teaching their skills to local nationals. These countries want the skills transferred so they can use local nationals on future projects.

We also face countries that make employees with engineering degrees pass an equivalency program. The college of engineers in that country may want to review their qualifications and grades to determine if they should be allowed to serve as a professional engineer. That complicates the situation.

Cobb: One of the biggest challenges companies face in this industry is locating all levels of U.S. personnel to staff the projects they bid for. This includes all professions, from researchers to chemical engineers to high-level welders. There are shortages of work visas for most occupations and no visa category for the experienced welders and machinists that are needed for complex work. Companies want to comply with the laws in place, so we work closely with them to look at all options and alternatives.

MCC: What are some key strategies for successful immigration in this sector?

Cobb: Companies are now realizing the benefits of establishing centralized global mobility programs to ensure compliance and consistency. We partner with clients to establish such programs that best fit their needs and continue to develop the program as the industry and their needs change. Companies are seeing the need for their immigration policies to take a much closer look at compliance. An example in the U.S. is the frequency of government site visits to H and L visas sponsors, regardless of the size of the company. This needed internal oversight is achieved with a centralized global compliance/mobility program – a group that approves travel and work authorization, and obtains advice and support from their legal vendor. We’ve been very busy over the last several years developing these programs with many of our clients. It gives the corporate leadership reassurance and peace of mind that the company has best practices in place to protect the employees and entity as a whole.

Archer: I tell oil and gas clients it’s imperative to make immigration a critical business strategy component, especially when they're doing bids. Things can go wrong if immigration is not a strategic component. You can actually win the project, but if you did not realize that mobilizing staff was going to be difficult, it could delay the project kickoff. That carries penalties in many situations.

I had a client with a vessel that arrived in the country without the right immigration documentation. The vessel could not work until the employees were regularized. As days passed, the maritime company had to pay staff and costs for keeping the vessel operational while the permits were in process. The company had to fold because it lost so much money. When it comes to strategy and policy, it’s critical that as part of your bidding process you include immigration in the analysis.

MCC: How do you work with clients to achieve successful outcomes?

Cobb: I believe the key is to work closely with the company and the individuals that will be in need for the visa. For example, it is very difficult when a company wants to bring an individual into the United States and it conflicts with family considerations – education, children, a spouse’s employment. We try to accommodate everyone, but after we discuss all the issues a family may decide not to take the assignment if they can't get all of their children here. It is so important to manage expectations from the outset because the professional may be a key member of a project team, so his or her ability to take the assignment is crucial.

Another example is when you are working with an expat who wishes to mobilize the family and he or she has an elderly parent who has always lived with the family, and there's no visa category to get them in. The employee can bring in a spouse and children under the age of 21, which makes it extremely difficult for family members who have elderly relatives who live with them.

Another problem is foreign nationals assigned to the U.S. who have severely disabled children over 21. There's no visa category to get them in. You've got this individual that needs to be working in the U.S. or potentially lose their job, but on the other hand they can't get this family member in.

Those are stressful, difficult decisions that families have to make. We have to review these and other aspects to make sure that we've managed everyone's expectations.

Archer: In Peru, for instance, you first have to have the assignee immigrate properly, and then he can call his family to join him. It's called "call to join." It's an uncomfortable situation because if they're home waiting, they're not with their loved one.

Cobb: The most important thing to find out when we get the go-ahead from a client is whether they have someone they want to bring in. How old are they? Will they have any problems obtaining a visa due to age? Are there any criminal issues? We find out as much as we can to uncover problems that will prevent the individual and his family from getting their visas. We also work with the employer to let them know an individual's child is not going to be able to stay here indefinitely. We work closely with them to plan ahead so it's not a big surprise when we let them know that because their child is turning 21 next month he or she has to leave the United States.

MCC: What's the most interesting or challenging situation you've faced, and how did you deal with it?

Orme: One of the most interesting challenges I've faced was a recent project for a client in Angola. The situation was critically important and the issues were numerous. What originally was an assignment to fix the "immigration" issues in-country turned into a much broader project wherein I met with the immigration team in-country several times and ended up organizing several meetings with the project managers, recruiters, government relations, the local visa team and others who were supporting the process. The result of these meetings was a mobilization process that was much more interconnected and proactive. After only six months, the fines that the company was incurring dropped dramatically, the rate of compliance rose considerably, and the company was able to identify and staff projects much more efficiently. The resulting quantitative and qualitative improvements made not only the mobilization process better but, more importantly, the improvements resulted in real, tangible savings. This interconnection and coordination is, I believe, the blueprint for the future of this practice. 

Cobb: The ever-changing nature of this industry is challenging. There's not a lot of case law in corporate immigration. There are a lot of gray areas. There are different interpretations depending on what's going in the United States, what's going on abroad, the economy.

People working offshore in the U.S. once would just get on a helicopter, go out to a rig or a vessel, do their work, and come back. Now they have to go through the U.S. Coast Guard and U.S. Customs just to get off the helicopter. There are so many different steps, and you're dealing with so many areas of the government. Sometimes it's really frustrating. But it keeps this area of law interesting because there are so many ways that you can forge a creative interpretation of the law.

Archer: For me the most challenging situation has been to determine whether a rig or vessel is located in territorial waters or the continental shelf or international waters. Depending on the country, it might require immigration documentation as if you were on land. The outer continental shelf is different with each location. In some places, you can easily transit through an airport with a tourist or business visa and you're not going to need any immigration documentation outside of that. In other countries, you need a work authorization. In others, you may have a visa designed for working offshore. And in places such as the Dead Sea, where there's more than one country that surrounds a relatively small body of water, there are special agreements between each country to allow national holders of visas to work in those locations. It becomes an exercise in trying to find out where the vessel or rig is and what the immigration options will be. You are constantly doing research and holding discussions with government entities and international organizations to find a solution feasible for your client.

MCC: What do your clients in the industry appreciate about working with you and your firm?

Cobb: The firm’s resources are what set us apart, and our clients in this industry appreciate and utilize them all. There are colleagues all over the world who can provide quick, concise legal advice, and that is what companies need. At the same time there remains the personal contact and hands-on approach that keeps us connected to our clients.

Archer: What I have experienced is that all of us attorneys across Fragomen have truly embraced our clients and tried to understand their goals. We understand where they're coming from and what they're trying to accomplish. Whenever we speak to them and try to come up with a solution, we're thinking about it not only in a legal way, but also trying to apply it to their business. They appreciate that we try not only to give them advice blindly, but actually put ourselves in their shoes and join them for the journey they're taking across the world.

Orme: I believe clients enjoy working with me because of my passion. I truly love what I do and I bring that passion to the job every day. All my clients have my cell number and I'm always accessible because, frankly, the job demands it. I think my passion also plays a role in my constant evaluation and assessment of the market, wherein I'm always looking for ways to improve my clients’ mobility programs or looking for ways to add value for my clients.

Our area of specialty is changing rapidly and I firmly believe that just meeting current market demands is not enough. Rather, you have to be innovative, creative and forward-thinking. The role we serve for our clients is becoming more and more critical. The firm and practitioner with the most resources, focus and energy will be the one clients look to hire.