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The basics:

• NJBIZ panel explores business impacts of immigration policy
• Attorneys say enforcement, visa delays threaten key industries
• Trump-era orders creating confusion and litigation risk
• Experts urge companies to audit compliance, prepare for ICE

As part of NJBIZ’s latest virtual discussion, immigration law experts from New Jersey spoke about how recent changes to federal policies could potentially impact businesses and the economy.

Moderated by NJBIZ Editor Jeffrey Kanige, the May 29 panel featured:

• Leonard D’Arrigo, partner at Harris Beach Murtha in Newark. D’Arrigo specializes in corporate and professional immigration involving employment-based immigration and non-immigrant petitions.
• Min Kim, partner at Edison-based Chugh LLP. Kim has extensive experience in securing visas and work authorization for foreign national employees at corporations ranging from small startups to mid-sized companies to Fortune 500 firms.
• Patrick McGovern, partner at Genova Burns LLC in Newark. McGovern has over four decades of experience in labor, employment and immigration law.

During the hour-and-a-half roundtable discussion, panelists addressed how policy changes could affect industries that rely heavily on immigrant workers, such as hospitality, construction and health care. They also explored how shifts in visa regulations, work authorization requirements and enforcement measures may influence workforce availability, labor costs and business operations.

A more detailed recap will appear in the June 9 issue of NJBIZ.

Trump 2.0

Since President Donald Trump returned to the White House for another term in January, McGovern said his executive orders regarding immigration have been “poorly executed.”

“All the various executive orders – birthright, citizenship, refugee admissions, catch and release, immigrant registration and the invocation of the Alien Enemies Act – it’s just unprepared and it’s kind of a train going down the tracks with no locomotive engineer in charge,” he said. “And I think that was the strategy: ‘How much can we throw at the American public to make sure that they can’t handle it all?’”

“I think we’re just going to see more of this extreme pushing the boundaries of the law and a lot of litigation,” McGovern said.

Kim said, “Practitioners within our space, we typically refer to you know the first term … as Trump 1.0. In Trump 1.0, a lot of it was marked by policymaking through adjudication … The regulatory agenda was to create new rules that are definitely anti-immigration. But, a lot of times those attempts were met with core challenges, and it really didn’t go anywhere.”

“It still it seems like the administration is kind of leading into that fear agenda once more, and pretty much kind of bullying foreign nationals with misinformation to force them out,” he said. Kim also noted the White House’s ongoing campaign encouraging self-deportation.

‘We were expecting the worst’

D’Arrigo believes the climate has forced immigration attorneys to become “very good at pivoting” and coming up with new solutions for clients at the last minute.

“I do feel like there’s a level of intensity that I don’t know that we could have imagined we lived through it before. And so, we were thinking, ‘We know what to expect and it’s the same old game.’ But there is a different level of intensity this time around. And so that’s the scary part of it,” he explained.

“A lot of it is nonsense, and a lot of it is ruling by executive action, and the courts are going to step in and overturn or reject this,” D’Arrigo said. “… But, it’s creating fear with employers and employees and foreign nationals, in general.”

Replay: Employment Law & Immigration Panel Discussion

Click through to register to watch the full panel discussion!

Prior to Inauguration Day, Kim said, “Folks within my office, along with all the employer and the employee clients that we represent in the immigration space, we were waiting with bated breath. We knew that it was going to be fairly rocky with the promulgation of proposed regs and executive orders of Jan. 20 … We were expecting the worst.”

He went on to say the “focus on F-1 students” was a surprise.

“When it comes to the track of a foreign national hiring, a lot of the recruitment starts at the student level, with them enrolling in universities, gaining work authorization pursuant to the practical training. And then making a career out of their field of expertise,” he said. “It just seems like that population has been under attack.”

Uncertainty

“Another area of surprise for me was the State Department choosing to reorganize their entire hierarchy. Secretary of State Marco Rubio, whether it be because of government efficiency, … decided to consolidate certain departments within the overall State Department. So as a result of that, we anticipate certain consulates closing and certain consulates limiting and restricting their visa offices …

“And the trickle down effect of that is that it’s going to be harder to secure a visa interview at whatever consulate that your foreign national worker is looking to apply to,” said Kim, adding, “And all of this is very fluid. We don’t know the exact ramifications of this, but that’s what we’re expecting.”

Panelists remain unsure just how successful any of the White House’s actions are regarding immigration.

D’Arrigo said, “A lot of it’s very fluid – there’s a lot of litigation ongoing which can change by the day … and there’s so much back and forth, creating so much uncertainty.”

[T]here’s a lot of litigation ongoing which can change by the day … and there’s so much back and forth, creating so much uncertainty.
– Leonard D’Arrigo, Harris Beach Murtha

“A lot of it is not sticking. But, the problem is that it creates havoc, uncertainty and confusion.

“Even though the administration probably knows there’s not a good argument to make for some of these executive orders, it just creates confusion even for immigration attorneys. It’s hard to keep up on all of the changes and what the state of the litigation is for the various visa programs,” D’Arrigo continued. “So, I mean, I think he’s been very successful in creating chaos. But you know, long term, whether or not these executive actions or policy changes are going to stick? Probably not because they’re probably not constitutional.”

‘Who’s going to do the work?’

D’Arrigo said the notion that foreign workers are “cheap labor” is simply not true. According to him, it’s typically three to four times more expensive than bringing on a U.S. worker.

“We have prevailing wage requirements that only apply to foreign workers and a lot of times those prevailing wages are much higher than what an employer would normally have to pay a U.S. worker. The legal fees and the government filing fees that keep increasing — it’s thousands and thousands of dollars just in filing fees,” he said. “No employer in their right mind would ever just prefer to hire a foreign national unless they really had to.”

“It depends on the industry, too. Where I see the most impact is in the lower skilled positions – our farm workers, our landscape laborers, dishwashers,” D’Arrigo said. “… That’s part of the problem that you know, a lot of these seasonal businesses would not survive without foreign labor.”

Kim added, “Even within the high skilled labor space – cutting edge technology and R&D in general – businesses have been struggling to find appropriately qualified individuals amongst the U.S. worker population … It’s just good business and good economy for companies to be able to choose and select whom to hire, whom to retain and whom to put their investment in.”

McGovern said, “When the spout is shut off and they don’t have the unskilled workers, everybody, I’m sure, will realize the irony of the administration wanting to bring more manufacturing back to the United States again. That’s pretty much the premise for these tariffs. OK, who’s going to do the work?”

Reality check

Given the current circumstances, panelists agreed it’s a good time for companies to assess their immigration programs.

Kim said, “Now is a good time to do it because the federal government is on record saying that enforcement compliance is going to be be prime agenda items for the next four years … So, before you receive a knock on your door by an ICE auditor, take the means and spend the time independently investigating to make sure that all your compliance paperwork is in order.”

D’Arrigo said, “We’re living in an era of unprecedented enforcement … All of the individuals that are here illegally that are easily identified. They have criminal backgrounds, order of deportation.” But, he said, ICE will also scrutinize businesses through I-9 audits and wage & hour investigations.

“I think employers are getting scared straight because they’re seeing what’s going on. So, look at your records, and not only looking at your I-9s for errors, but also to identify any questionable employees that may be in a vulnerable status or that there may be an issue with their paperwork,” he said. “Because when ICE comes to do this investigation ultimately, if they find that someone’s unauthorized to work, they’re going to have to be terminated or they’re probably going to be taken into custody,” D’Arrigo said.

“So what impact is that going to have on the employer in certain industries are more vulnerable agriculture? What’s going to happen when 60 employees automatically disappear for those operations? We’re recommending that they start thinking about that – how are they going to fill these open positions which are already hard to fill,” he said “You want to have a rapid response plan if you get a government visit – whether it’s [Occupational Safety and Health Administration] wage & hour or ICE.”