In the summer of 2018, I and several other Denver-area attorneys became overnight pro bono immigration lawyers as local advocacy groups urgently sought assistance to advocate for separated parents being detained at a large Immigration and Customs Enforcement facility in Aurora. A week after signing up, I was in front of an immigration judge, arguing (successfully, as it would turn out) that my client should be released on minimum bond so she could reunite with her son, whom she had not seen in a month.
By the end of my volunteer engagement, I had helped four asylum seekers obtain release from the Aurora facility to seek out their loved ones elsewhere in the U.S.
Becoming registered as an immigration lawyer is a simple process, but immigration law itself can be quite complex. I received substantial on-the-job training and support from volunteer organizations, but ultimately, I was the one standing up in court fielding questions from the judge with a vulnerable client sitting next to me. When the judge grilled me about the novel interpretation of immigration statutes and regulations I was advancing to get my client out of detention, I could not call an immigration law expert for help. I had to be the expert.
I found that for all the heated politics surrounding the family separation policy, the government attorneys, and certainly the judges, were dedicated public servants trying their best to reach the correct result. As with other forms of litigation, flexibility and negotiation skills came into play as I helped my clients navigate a system that was unfamiliar to them and new to me. And for certain client needs, the law was of no help at all. For example, when one of my clients was excluded from the court-ordered reunification effort because the government mistakenly concluded that he did not have a child in custody (his young son was, in fact, in custody at a separate facility), there were no procedural rules to correct the situation. Only several hours calling several officials at various facilities solved the problem. Knowledge of the system, creativity and persistence can be just as important as legal knowledge.
My experience with the pro bono immigration program afforded me a new appreciation for the international issues my technology clients face on a daily basis. Business matters lack the direct emotional impact of separated families, but the stakes are critical nonetheless. Enabling a company to thrive and succeed allows that company’s employees and investors to provide for their families, not to mention the technological innovations that benefit society at large.
Immigrants have helped the U.S. become the world’s leader in innovation. A recent study showed that between 2000 and 2010, over 190,000 inventors immigrated to the U.S. It isn’t that Americans can’t innovate but rather that the American system provides the best environment for innovation, drawing in the top talent from all over the world. And American companies, whether purely domestic operations or global affairs, have traditionally relied upon this steady supply of foreign talent in developing their technologies.
A variety of mechanisms exist to allow foreign inventors to work in the U.S. While full citizenship or permanent residency can be cumbersome to obtain, if at all, the temporary H-1B visa has proven to be a popular means of obtaining temporary status to live and work in the U.S., provided that the immigrant is sufficiently skilled to qualify.
However, the current administration has reduced the availability of H-1B visas, making the visas less attractive to companies seeking to bring skilled workers to the U.S. This, coupled with the U.S. government’s perceived hostility toward immigration, may make workers less likely to seek entry in the first place. With these tightened immigration requirements, companies can no longer count on H-1B visas to easily bring tech talent to the U.S. from abroad. H-1B visas are still available, but an attorney able to navigate the immigration system may be necessary to ensure a successful application.
More and more, companies view attorneys as business counselors in addition to legal advocates and advisors, and a broad understanding of a client’s needs is critical to fill that role. As immigration rules and standards shift while the need for skilled immigrant workers continues to increase, attorneys should equip themselves to advise clients on these immigration matters in addition to other business issues.
Attorneys should also be aware of alternative means for U.S. companies to obtain the benefit of foreign workers, if physically bringing the workers to the U.S. is not an option. Information — specifically the technical knowledge and know-how that enables innovation — can theoretically cross borders more easily than people can. But the flow of information, too, presents traps for the unwary, particularly when it comes to valuable and sensitive technical information. Many countries impose strict export controls that limit the ability to send certain information out of the country. And the new European data privacy requirements have imposed an additional layer of restrictions on how information can be stored in and transmitted from that region.
Further, political considerations must always be taken into account. The EU ostensibly operates as a single economic entity vis a vis the U.S., but with Brexit and other manifestations of “euroskepticism” taking hold in Europe, dealing with international matters in particular jurisdictions may require additional sensitivities, regardless of the letter of the law.
Likewise, the U.S. and China are openly competing for global dominance in the technology arena, and thus anyone operating in Asia must be aware of the political realities underlying technical legal requirements. Again, knowing the system and knowing the law are two different things, and effective counselors must be fluent in both.
It has been said that the political divide of our time is not left vs. right, but global vs. national. But companies cannot let ideological battles slow down their progress or impede their profitability. Attorneys counselling technology clients must be prepared to provide advice on these international issues, starting with immigration.
—Matthew Holohan is a partner in the Denver office of Kilpatrick Townsend & Stockton. The views expressed herein do not reflect the views of any client.