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Owen Davies, Senior Manager and Solicitor

The benefits of migrants to the UK economy are well recognised, albeit not always so well publicised. Official statistics show that migrants contribute 10% of GDP, despite making up only 8% of the workforce. At a corporate level, 60% of companies regard human resources as the most important factor in future competitiveness and, with increased global competition and the rise of the knowledge economy, eight in 10 UK employers are looking beyond the domestic market and are actively recruiting staff from overseas.

For US companies investing in the UK, the sourcing, mobility and retention of quality human resources from the US are paramount. If that is the case, why is immigration law rarely discussed at the corporate legal level? In fact, intelligent companies investing in the UK recognize that policies on employing non-EEA nationals can be key to future success and the very best companies are initiating and developing corporate immigration strategy when investment is being considered.

What is driving the need for corporate immigration strategy in the UK?

Organizations within industries where immigration has always been a central focal point, such as IT, management consultancy and the health industries, have the most mature corporate immigration strategies in place. In recent years, however, recruitment need, increased globalization and investment protection have forced other industry sectors to realize the potential of such strategy implementation.

From the UK perspective, the current main driving force affecting all industries is the UK government’s roll out of a new pointsbased immigration system which replaces the current work permit scheme. Aimed at tackling abuse and controlling migration more effectively, industry is being called upon to play its role in making migration work for Britain. The new scheme, which should be fully implemented by April 2009, aims at giving employers more control and flexibility over their decisions in employing overseas nationals through Home Office accreditation.

With these benefits, however, come increased obligations. Not meeting those obligations could result in both criminal and/or civil penalties aimed both at the company and the officers of that company. Even worse, however, failures in procedure could result in suspension or removal from the Home Office accreditation scheme and, as a result, the end of employment for all foreign workers in the UK. The employees themselves could face bans from future travel to the UK of one to 10 years. Compliance will, therefore, become everything. And forwardthinking companies are developing their immigration strategy now.

What is corporate immigration strategy?

What is, therefore, corporate immigration strategy? Simply put, it is a coherent corporate approach to maximising compliance whilst ensuring that immigration is a business tool rather than a business impediment. It can be domestic in approach but, depending on the organisation involved, most effective when regional or even global in nature. It defines what is acceptable from a corporate risk standpoint whilst also introducing policies that will best benefit the company now and in the future. As it relates to the interpretation and implementation of law, it requires buy-in at the appropriate level of an organization and needs to be properly communicated throughout the organization to have maximum effect.

How does it work in practice?

Companies need to monitor, track and connect with migrant staff

Any corporate immigration strategy will be unique to the organization involved. There are, however, common themes. The UK immigration authorities are extremely commercially aware. However, their resources are limited and, as such, the most respected and well-known service-users will be at an advantage. Branding and representation, both at corporate and legal representative level, are, therefore, key to immigration. While pigeon holed and/or under-represented, the leverage available to obtain concessions, exceptional treatment and better turnaround times is limited.

Then there are costs. A coherent and comprehensive corporate immigration strategy may immediately save some money. In the future, however, a carefullyplanned corporate immigration strategy introduced now, in anticipation of the employer accreditation scheme, could potentially save some organizations hundreds of thousands of pounds.

The final common theme is the willingness of the vast majority of UK companies to be compliant. In most cases, compliance is directly related to control. A review of organizational structure from an immigration perspective and the authority to deal with an increasingly complex area of law typically identifies weaknesses. This, in turn, can assist in policy drafting to strengthen the company and maximise leverage benefit.

The thread that runs through all themes is the need for companies to be able to monitor, track and connect with their migrant population. The need to produce and review reports is, therefore, paramount and the days of the excel spreadsheet with expiry dates should be long gone. The intelligent company should have access to reports both in the UK and internationally that can detail all immigration aspects of an expatriate assignment or new hire. Only in this way can a company truly calculate movement to maximize branding, manage costs and ascertain compliance levels.

To conclude, UK immigration law has become a fundamental consideration for any company looking to invest in the UK. With the current overhaul of the UK immigration system, this will become even more so as companies are obliged to monitor their migrant population. For those companies that already have a corporate immigration strategy in place, it is a good time for review in light of announcements on the employer accreditation scheme. For those that don’t, an immediate discussion may prove vital.

Fragomen is recognised internationally as the leading global immigration services provider. We employ more than 1,200 people in over 33 offices located in Australia, Belgium, China, Costa Rica, Germany, Hong Kong, India, New Zealand, Singapore, the United States and the United Kingdom. Our global immigration professionals include qualified US and foreign-licensed attorneys, former consular and government officials, and an international staff of immigration specialists.

For further information, contact:
Owen Davies
Fragomen LLP, London
Tel: +44 (0) 20 3077 5100
Email: odavies@fragomen.com
Website: www.fragomen.com

MAINTAINING PERMANENT RESIDENT STATUS

Charlotte Slocombe, Manager Solicitor/US Attorney at Law

– Cross jurisdictional considerations Taking into account planning and strategy, it is vital for companies not to think in linear terms, but consider cross-jurisdictional immigration and how re-locating employees out of the US on long term or medium-term assignment may affect their immigration status in the US, for example maintaining Greencard status (Legal Permanent Residence). The issue of maintaining Greencard status typically arises when a permanent resident seeks readmission to the United States after a visit abroad.

A permanent resident of the United States must be able to show that that he or she has the intention to live and reside permanently in the United States. When re-entering the U.S. after a trip abroad, it must be shown that the trip abroad was temporary and that the individual is returning to an unrelinquished permanent residence in the U.S. Intention, a subjective concept, must be borne out through objective indicia.

There are three main considerations the USCIS uses in evaluating these issues:

• The purpose of the individual’s departure from the United States. Suitable reasons may include an employment opportunity, education or professional training.
• The existence of a fixed termination date for the visit abroad.
• The individual’s intention, as demonstrated by objective factors, to return to the United States as a place of permanent employment or as an actual home. The main factor being the continued payment of United States taxes as a tax resident for each year in which the individual claims lawful permanent resident status.

A permanent resident must, at a minimum, enter the United States at least once in each 12-month period. Exceeding this period will lead to automatic abandonment of Legal Permanent status. We generally recommend that permanent residents who are temporarily residing outside of the U.S. enter the U.S. at least every six months. A persuasive indication that an individual intends to relinquish permanent resident status is entry into the United States in a manner contrary to entry as a lawful permanent resident, such as an entry in any nonimmigrant visa category or under the Visa Waiver programme.

Permanent residents, who anticipate that they will be entering the U.S. infrequently, or who will not reenter the United States within 12 months of departure, are strongly advised to file an application for a Reentry Permit with the USCIS. We however would advise that a re-entry permit be filed for a continuous stay outside the US of 6 months or more. The regulations provide that the filing of the application for a Reentry Permit must occur while the applicant is physically within the United States. New regulations also now require lawful permanent residents age 14 through 79 who have filed an application for a reentry permit to provide biometrics at a USCIS Application Support Center appointment prior to departing the United States. Therefore immigration planning is key.

Reentry Permits may be issued for up to two years. No extensions are permitted; however, a new application requesting an additional period of time may be filed. Applicants should seek guidance on the effect of a 24-month absence on a future naturalization application.

It is important to note that a re-entry permit does not confer a right to reentry or a guarantee of admission only prima facie evidence of intention to maintain Greencard status .

For further information, contact:
Charlotte Slocombe,
Fragomen LLP, London.
Tel: +44 (0) 20 3077 5250
Email: cslocombe@fragomen.com

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