When I graduated from law school in 1968, immigration issues were not considered part of employment law. In fact, few people even rec- ognized that there was such
a thing as employment-based immigration. Existing law
did not provide many pathways for people from other countries
to come to the U.S. to make a living.
This area of legal practice originated out of a concern for the
rights of the immigrants already living here. Immigration attorneys focused primarily on representing foreign nationals who
found themselves in deportation proceedings, or who wanted to
apply for asylum, or who were undocumented and sought lawful
status. As such, immigration was primarily viewed as an aspect
of international law.
I noticed that first start to shift in 1970. I was in my first job, serving as staff counsel to the U.S. House of Representatives’ Subcommittee on Immigration, Citizenship and International Law.
The National Foreign Trade Council was lobbying Congress to
create a visa for people from other countries to transfer to roles
in the U. S. within the same company. At that time, there was no
easy way for global companies to do that. Instead, they had to
devise workarounds, such as bringing people into the country as
business visitors for short stints.
Members of Congress recognized that creating an intracom-
pany transferee visa was integral to expanding U.S. exports and
bolstering the competitiveness of U.S. companies. The resulting
legislation allowed executives, managers or employees
with specialized knowledge from other countries to
work in similar capacities within U.S. parent com-
panies, subsidiaries, affiliates or branches. It also
expanded the H-1 visa category from covering only
temporary positions to include regular full-time jobs.
By the time I left the staff counsel position, a group of
corporate leaders had formed the American Council on Interna-
tional Personnel (ACIP), a trade group that advocated for better
employment-based immigration laws. In 2013, ACIP became
the Council for Global Immigration, which is now a Society for
Human Resource Management affiliate.
A watershed moment for business-based immigration came in
How immigration became an integral part of employment law over
1986 with the passage of the Immigration Reform and Control
Act (IRCA), which penalized employers that knowingly hired for-
eign employees who were not lawfully authorized to work in the
U. S. IRCA also ushered in the use of Form I- 9, the employment
eligibility verification form that all employers are now required to
complete and maintain for all employees hired since 1986.
Because many immigrant advocates worried that the I- 9
requirement would give employers a reason not to consider
Witness to an Evolution
the past half century.
By Austin T. Fragomen Jr.
‘The big challenge these
days is for corporate leaders
to make their voices heard
on issues related to global
mobility and immigration.’ The Immigration Reform and Control Act of 1986
ushered in a new era of immigration law.