H-1B Rumors Got Your Company Down? China Holds Lessons for Your Immigration Handbook
The whispers about changes to the H-1B, the L-1, and various investor-friendly immigration programs have started.
As an immigration lawyer I can’t tell you anything about the EOs and guidance memos to come, but as a former consultant for large healthcare companies in China I want to warn you that companies who work with sponsored foreign workers should prepare for the possibility that Americas immigration policy environment is in danger of entering an uncharted period of normative rule making.
If a normative rule making period should come to pass, opacity surrounding work immigration visas and deal making necessary for their issuance is going to become the new reality.
…opacity surrounding work immigration visas and deal making necessary for their issuance is going to become the new reality.
This is similar to what foreign companies in China have to deal with
This sort of environment would create the sort of challenges that companies operating in China have grown used to in broad areas of their operations.
My purpose for writing this column is to offer some advice on how lessons from the China context can helpfully inform any addendum to a company’s internal immigration policy manuals designed to deal with the arrival of normative rules.
But what is normative rule making?
America is a country of rule by law. For the most part, the enforcement and creation of laws in most arenas is predictable. Rule through normative rule making, by contrast, is when the law that exists is open to constant interpretation by those in power, and predictability is replaced by volatility and deal making.
It’s too simple to call normative rule making rule by man, because the laws in force at any one time can very much be enforced in a rule making scenario, even against those in power. There are certainly authoritarian tendencies in normative rule making states or scenarios, but this is not the essence of what characterizes it.
But, it is correct to say that the necessity of responding as much to the politics and personalities behind the law in a normative rule making scenario is as important as responding to what can be found in a statute, executive order, policy guidance memo, regulation, or the like. Being vigilante as to the political background of law is the essence, therefore, of normative rule making states or scenarios.
Finally, the status quo outcome of normative rule making is, by its very nature, unfair, unless directly and regularly challenged.
How does normative rule making broadly change immigration law strategy?
In a fully realized normative rule making regime, for both companies and individuals generally, obtaining a favorable immigration outcome for an application, a labor certification, an appeal of an unfavorable ruling, or a request for evidence, would hinge on the ability of a person or a company to put forth both a strong legal argument, and explicitly be aware of and respond to the political underpinnings of the government.
The inclination of the rule maker is to guide the discussion towards “making a deal” (does this sound like anyone you know?).
The inclination of the rule maker is to guide the discussion towards “making a deal” (does this sound like anyone you know?).
Who does one “make a deal” with in such a fully realized normative rule-making regime?
The one requesting an immigration benefit will always, no matter what it may seem like, be making it with the political institution from whom she is seeking the benefit. The law will be discussed, but the politics will animate every word. This means that the deal making becomes explicitly dual-natured, dependent on both the laws on paper and the politics that animate them.
What can individuals and smaller companies expect during such deal making?
For many, if not most individuals and smaller companies under a fully realized normative rule making scenario, the ability to “deal make” would be limited or nonexistent, without the aid of lawyers or insiders.
Even then, for individuals or smaller companies, there may just not be enough leverage to truly hash out a “deal”, in the sense that the deal produced an outcome that the rule maker wasn’t originally prepared to sign off on.
A good “deal” outcome would likely be the avoidance of outright mistreatment at the hands of the regulator, and a best-case outcome would some set of results that’s actually fair to the individual or small company (as opposed to merely a step above mistreatment).
What can larger companies expect under the same scenario
But for larger companies the “case by case” aspect of immigration law would be a game with seemingly more possible out comes, dependent, of course, on good counsel and a well-connected government relations team.
What might a big company scenario look like?
Imagine you are Google or Amazon, or a large pharmaceutical company, and a large number of your current workers, in-house, or contracted, are on H-1Bs. And let’s further assume that a new policy is announced by the Trump administration Attorney General that increases the floor on H-1B salaries from $60,000 to $150,000, and that the penalties for every worker in the company beyond the 50th to be on an H-1B are substantially increased. Finally, let’s assume that my conceit involving normative rule making has come to pass and is in full effect.
Under this set of assumptions Google and Amazon are forced to come to the table to negotiate. And in a fully realized normative rule making scenario they are forced to play a three level negotiation game.
The first level takes place behind closed doors, between lawyers of the companies and the government, and this is a very legal back and forth.
But because the law or its officially promulgated interpretation is known to be negotiable, there is a second closed door negotiation happening between government relations personnel and the political operatives that have a say in how immigration authorities say their jobs.
On the third level, there is a conversation about how this needs to play out publicly in order for the administration to come out as an enforcer of a just law, and for the company to come out looking like it has stuck to any publicly held beliefs or promises.
The most important of these is invariably the second level negotiation between government relations offices and political operatives. The outcome of that will directly negotiate the third level conversation about political posturing. And because the rule of law is now normative, the political negotiation will determine the outcome of the first, level closed-door legal negotiation.
In China, this sort of scenario often plays out with the company securing a favorable deal with a political head. The political head then informs the regulator of the deal and of the preferred method of “legal interpretation” of whatever order or regulation has been implicated. And finally, the company or companies make a good show of faith towards the Party through some public display of kowtow.
Apply the China example to the H-1B Google/Amazon scenario above, insert Jeffrey Sessions as the political head (and, in America’s case, also the regulatory head), and imagine Google or Amazon publicly saying that the new H-1B policy is tough but fair after securing a deal for their foreign workers, and…. you get to China lesson # 1.
What Should NOT Be Done: AKA, China Lessons to Apply #1
The repercussions of applying the China example to the Google/Amazon scenario show that there is obvious potential in a system that is opaque and plays favorites, for really bad things to happen, and for capitulation to a government’s political interests to become commonplace.
So the first lesson from China that we can apply to a normative rule making regime is that trading political patronage in return for corporate expediency in the arena of immigration law creates a road of ruin for the company involved (analogous lesson here for individual rights in a normative rule making regime, but that’s for another day).
Certainly from the point of view of the larger American companies involved in a spat over work visas with the Trump administration, it would be tempting to take a really good deal on visa cost reductions or exemptions from fines in return for simply publicly supporting/kowtowing to the administration’s policies, even though the policies would continue to be unfair and damaging to smaller companies, individuals, and even larger companies unwilling to do the same.
This would be, after all, a form of what many successful companies in China seem to do. China’s favored companies regularly bend their outward-facing policies to be more in line with the ideology of the state.
However, by defanging its corporate interests towards a sane immigration policy in return for a favorable outcome for one’s policy, the company making the deal would further set the table take part in that sort of negotiation for every concession the company wishes to get from the government going forward.
Do this instead: AKA, China Lessons to Apply #2
Capitulation of corporate interests to China’s ruling party is due to China’s particular history of corporate development and governance. The history is too long to go into here, but suffice it to say that the sort of independence of private sector governance that exists in the United States does not exist in the same way in China. For individuals, the Party controls much of what they hear, are allowed to do, and are allowed to say, in a way that (hopefully) is still a far off reality for people in America. In other words, China represents the end-game of the normative rule making state, and America is only now sitting on the precipice of having to begin the game in earnest.
Consequently, as much as a politically dominant entity in the U.S. might want it to be otherwise, trying to become a “favored” company or a ideologically aligned individual of the administration in the U.S. is not a winning strategy, because in taking this sort of capitulation so early in the game, when the history, case law, and spirit of the immigration policy ecosphere is still in favor of a clear, fair immigration system, all one is doing is conceding a well defended position.
Instead, the insight that is most important from China comes from a different set of facts. Precisely because normative rule making is politically driven, Chinese companies in China’s flagship tech industries enjoy a great amount of autonomy in their decision making. This is not simply because China sees companies like AliBaba or Baidu as their future, but because these companies wield a market power and a political power that is necessary for the party to acknowledge and cater to.
These companies actively court favor from the public and actively lobby for their interests with the government. Their entire focus is to make sure that they stay strong both in terms of their revenues and in their good will with Chinese people.
Apply this to the U.S. and it becomes apparent that one the most effective ways for a company to respond is politically through both public and private channels of lobbying. And the way to update an immigration policy handbook is not to bend it towards the ideology of a ruling regime, but to update it with a strong lobbying and PR component focused on advocating for sane work visa policies, and for avoiding back room deal-making at all costs.
In the short term this may mean a reduction in the ability to secure global talent, but in the long term the strategy will bend the tendency of immigration regulations back towards a predictable, rule of law, and away from a volatile, damaging normative rule making mode.
But, to be clear from the onset, I am not arguing that companies here should necessarily act like companies in China do when dealing with the Chinese government.
None of my advice pushes for capitulation to poorly thought-out immigration policies and haphazard, unjust rule making and enforcement, that for now seem likely to be a hallmark of the current administration.
Rather, my overarching message is that in an environment where normative rule making governs in the immigration policy arena, developing lobbying and PR capabilities specifically focused on immigration policies is going to become a necessity for companies that wish to continue to compete for the best talent available globally.
(For individuals worrying about rumored changes to the work visa programs, though this article is not specifically aimed at you, the analogous lesson is to refuse to capitulate to seemingly all-powerful forces, and instead to double-down on aggressive representation and advocacy for themselves in the immigration arena.)
