The World of International Mobility:
Business Immigration Management
From Risk to Opportunity
CERC Annual Conference
September 21 – 23, 2014
Whistler, B.C.
Julie Lessard, Lawyer, Partner
BCF Business Law
1100 René-Levesque Blvd., 25 Floor
Montréal (QC) H3B 5C9 Canada
Disclaimer
This presentation contains general information only and the
speaker and represented firm are not, by means of this
presentation, rendering legal, business or other professional
advice or services.
This presentation is not a substitute for such professional advice
or services nor it should be used as a basis for any decision or
action that may affect your business.
The speaker and represented firm shall not be responsible for
any loss sustained from such decisions or actions.
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Table of Contents
I. BUSINESS PRACTICES ON THE GROUND
II. WHY IS IMMIGRATION COMPLICATED (MORE
THAN EVER)?
III. RISKS INHERENT TO BUSINESS IMMIGRATION
IV. BEST PRACTICES FOR RISK MITIGATION
V. Q&A AND CONTACT INFORMATION
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« We know the rules, but what’s happening in the trenches? »
I. BUSINESS PRACTICES ON THE
GROUND
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I. Business Practices on the Ground
1. The Decentralized Model
2. Modern Approaches to Global Mobility
Management:
2.a. The Centralized (“In House”) Approach
2.b. The Global Project Manager Approach
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1. The Decentralized Model
• Philosophy: Immigration as pure « compliance exercise » or
« paperwork »
• Goal: quickly moving an employee from one country to
another
• Approach: « Ad hoc » relationships with local legal providers
• Measure of success: Time for Employee X to get to country Y
with the required authorizations
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1. The Decentralized Model (cont.)
Substantial Challenges in Risk Management:
 Gathering and tracking key data (expiry dates, audits)
Assessing and managing risks in immigration process
(tax, audit compliance
Consistency of representations before the government
Cost Control
Assuring host-country legal compliance for the
company
Maintaining a consistent level of quality vis-à-vis the
business and the expatriate
Narrow view of immigration, disconnect from tax and
other compliance aspects
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2. Modern Global Mobility
Management Built for Success
• Philosophy: Global Mobility Management (GMM) requires
coherent, multi-dimensional policies and programs to be
successful
• The goal: Mitigation of risks and Elimination of noncompliance
• Approach: Carefully planned Centralized Control or
outsourced GMM Project Manager
• Measure of success: An optimum GMM organizational
structure to maximize the opportunities and to minimize and
control risks
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2.a. The Centralized (“In House”)
Approach
• Elaborate arrangements for the centralized control of the
migration process from the Corporate HQ or within major
world regions
• Limited number of companies build up capacity and expertise
to devote resources for in-house preparation of immigration
applications in multiple foreign jurisdictions
• Management of outsourced relationships with multiple
providers in each jurisdiction would still be required
• Concern with regards to unauthorized practice of law
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2.b. The “Global Project Manager”
• Global Manager as a « blended » approach
• Bulk of responsibility for the GMM is fully outsourced to the
« Global Service Provider », typically a group of firms selected
in a competitive bid:
A. Relocation
B. Tax
C. Immigration
• « Global Immigration Provider »
- performs most immigration work in main jurisdictions
- negotiates contracts & SLAs with destination providers;
- maintains an integrated immigration management
database.
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Understanding the New Immigration Landscape
II. WHY IS IMMIGRATION
COMPLICATED (MORE THAN EVER)?
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II. Why is Immigration Complicated
(More than Ever)?
1.
Immigration Law Complexity & Frequent Changes
2. Trends towards Restrictive Interpretations of Law
3. Increased Government Surveillance
4. Complexity of Global Business Models
5. Peripheral issues (anti-corruption, public relations, union
relations, controlled technology and exports)
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1. Immigration Law Complexity
• The United States example: Complexity of the Immigration &
Nationality Act (INA) « equals only to the IRS Tax Code »
(Congressional Research Report on Immigration)
• The Canadian example: changes made through either law,
operational bulletins, interpretation. In Canada, major
reforms one after the other since 2011.
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2. Trends towards Restrictive
Interpretations of Immigration Law
50%
45%
40%
35%
30%
25%
Applications 2003
20%
Applications 2013
15%
10%
5%
0%
L-1B Denials
Request for Evidence (RFE)
L-1B Adjudications Trends 2003-2013, National Foundation for American Policy, 2013
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2. Trends towards Restrictive
Interpretations of Immigration Law
• L-1B Specialized Knowledge – Intracompany Transferee
Program widely used by multinationals
• No changes to the U.S. regulations governing L-1B applications
in 2003 – 2013; HOWEVER, refusal and Request for Evidence
Rates in L-1B applications skyrocketed during this period
• Canada followed suit in 2013 in introducing stricter
interpretation of « Specialized Knowledge » definitions for
Intracompany Transferees
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3. Increased Government
Surveillance
• « Smart Borders »: Post 9/11, governments worldwide have
invested billions in sophisticated technology to make borders
safer
• Governments create and maintain accurate, current, traceable
information on the movement of foreign nationals within
their borders
• Search of personal electronic devices at the border
• Increased savvy of border agents who use public domain
information (Google, LinkedIn, Facebook) to screen travelers
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3. Increased Government Surveillance
• « Canada has become increasingly enforcement-oriented »,
Immigration Practitioner in Toronto, Ontario .
• « ...Further Developments have shown the UKBA’s re-focus on
non-compliance since the beginning of 2013, with the UKBA
creating a hostile operational environment for individuals
and organizations who do not play by the rules », London,
UK-based immigration attorney
• “I-9 enforcement is at an all-time high... It’s now a question of
when, not if, an organization will be audited,”, Immigration
practitioner in Portland, Oregon, USA
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4. Complexity of Global Business
• Project Work in the Global Economy
– Firms often bid, secure and sometimes attempt to fulfill
contracts without any review of immigration aspects of the
projects prior to bidding
– Chains of subcontractors with unclear responsibility for
securing immigration documents
• Mobile Employees of Various Profiles
– Frequent Travelers
– Temporary Assignees
– Permanent Transferees
• Complex Corporate Structures
- Joint Ventures
- Corporate Changes (M&A, divestments)
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5. Public Relations, Political and
Peripheral Aspects
• PR & Immigration: Increased Media attention during
economic downturn & related pressures from unions (RBC,
Hydro Quebec, McDonald’s Canada)
• Intersection between Immigration and Anti-Corruption
(American Foreign Corrupt Practices Act, the UK Bribery Act
making reference to « facilitation payments » to government
officials to promote the discretion of immigration outcome
illegal. * Application to extra-territorial activities of
companies present in either jurisdiction.
• Bill 1 or The Integrity in Public Contracts Act (the "Integrity
Act") in Québec
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5. Public Relations, Political and
Peripheral Aspects
• U.S. Export Control Laws (EAR/ITAR):
– “Export license” is required to export controlled
technology from the United States;
– When an “alien worker” is merely exposed to controlled
technology even inside the United States, « deemed
export » of controlled technology occurs, exposing
company to penalties if no export license or required
clearances obtained;
– Examples of « controlled technology »: encryption
software and many others;
– Amendment to USCIS forms for I-129 Petitions to include
specific questions to measure a company’s EAR/ITAR
compliance.
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While risks are many, we highlight a few very important ones
III. RISKS INHERENT TO
BUSINESS IMMIGRATION
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III. Risks Inherent to Business
Immigration
1. Civil and Criminal Liability
2. Administrative Record Keeping
3. Risks assumed through Corporate
Restructuring
4. Global Project Delivery Models and Business
Visitors
5. Employer-Employee Litigation & Illegal
Practice of Law
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1. Civil and Criminal Liability
In Canada, stronger enforcement and tougher penalties
under the changes to the Temporary Foreign Worker
Program:
•Massively increasing the number and scope of inspections so that
one in four businesses employing temporary foreign workers will be
inspected by the TFWP each year.
• Increasing the number of program requirements that inspectors
can review from 3 to 21.
• Improving and expanding the TFWP Tip Line and creating a new
"Complaints" website.
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1. Civil and Criminal Liability
In Canada, stronger enforcement and tougher penalties
under the changes to the Temporary Foreign Worker
Program:
• Expanding the ability to publicly blacklist employers who have been suspended and
are under investigation, as well as those who have had an LMIA revoked and are
banned from using the program.
• Additional funding for the Canada Border Services Agency to allow for an increase in
the number of criminal investigations.
• Improving information sharing among departments and agencies involved in the
oversight of the TFWP, including provincial and territorial governments.
• Introducing significant monetary fines of up to $100,000 following adoption of new
legislative authorities included in the Budget Implementation Act (Bill C-31).
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1. Civil and Criminal Liability
In other jurisdictions:
• US$16,000 employer fine for continuing to knowingly employ
or recruit an individual not authorized to work in the United
States (USA)
• €5,000 and 3 years jail sentence for employing a worker
without a work permit (Italy)
• $500 - $25,000 equivalent penalties in the UK, China, Russia,
Philippines
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2. Administrative Record-Keeping
Post-approval issues may include:
• I-9, H-1B & Labor Certification Application (LCA) issues in the
U.S.
• Audit and recordkeeping in Labour Market Opinions (LMO)
application in Canada
• Fines can be high (multiplied by # of non-compliant records or
violation counts)
• Expulsion from Temporary Foreign Worker Program as the
worst penalty
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3. Risks Assumed through
Corporate Restructuring
• Mergers and Acquisitions:
A. Likelihood of « purchasing » some non-compliance along
with all of the others assets and liabilities
B. Possibility of losing work authorization temporarily or
permanently for part of the workforce (Intracompany
transferees in some scenarios depending on the structure of
the deal, U.S. Treaty Investor / Treaty Trader visas tied to the
concept of « Company Nationality »)
A. The M&A itself creates risks through changed reporting
procedures, job duties, salaries, corporate entities, etc.
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4. Global Project Delivery Models &
Business Visitors
• Information gathered by authorities on entry can (and often is)
being shared with immigration and tax authorities
• Countries are redefining permanent establishments,
« coupling » tax and immigration issues for employers and
individuals, searching for travel patterns with the goal of
imposing immigration rules and Permanent Establishment (PE)
taxation rules
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4. Global Project Delivery Models &
Business Visitors
• Little awareness of tax and immigration issues when persons
operate outside of defined company mobility programs
• Even when there is awareness, difficulty remains tracking
mobile employees: 45% of respondents in Certified Equity
Professional Institute Survey, Santa Clara University, « are still
developing an effective approach to managing data capture
for tracking movement of cross-border employees ».
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5. Risks Related to Employee-Employer
Litigation and Illegal Practice of Law
• In-house « Immigration Specialists » helping employees:
where is the line not to be crossed?
• Whistleblower or disgruntled employee? The resulting math
may be the same... US$35 Million for Illegal Use of Visas in
Infosys Inc. investigation triggered by Infosys vs. Palmer
• Dropping the Green Card Process: It may be expensive for you.
DerKevorkian v. Lionbridge Techs, Inc.
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Thriving on global mobility
IV. BEST PRACTICES FOR RISK
MITIGATION
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IV. Best Practices for Risk Mitigation
1. Identifying Principal Risks
2. Assessing Existing Practices
3. Choosing and Maintaining the Right GMM
Model
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1. Identifying Principal Risks
• Failure to adapt to the forces driving business immigration
process is counterproductive and risky for your business
• Understanding and identifying the risks is half of the battle
won
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2. Assessing Existing Practices
• Strategic Vision: How do you define your needs? Immediate
Project Needs vs Long-Term talent development strategies?
• Line of Command: Who is responsible for daily GMM
operations. Are roles well-defined? Who takes final
responsibility for risk?
• Tools and Practices: How do you track movement of your
workforce? Which software do you use? How is data reported
and synced with other areas of compliance (tax, security)?
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3. Choosing and Maintaining the
Right GMM Model
Launch your GMM Model:
• Mapping your global needs
• Conducting cost-benefit analysis
• Consulting industry experts and « success stories »
• Implementing clear and transparent plan and getting the
management to « buy-in » early in the process
Operational Stage:
• Stay on top of the game: Frequently refreshing and reeducating players, reviewing policy documents
• See the target: mitigating risk and eliminating noncompliance, not eliminating any risk as this is an impossible
task in business or immigration
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Contact
Julie Lessard, Partner, Lawyer
BCF Business Law
1100 René-Levesque Blvd. W., 25th Fl.
Montréal (QC) H3B 5C9 Canada
Julie.Lessard@bcf.ca
www.bcf.ca
http://www.linkedin.com/in/businessimmigrationlessardj
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