applicants who looked or sounded
“foreign,” tough new anti-dis-crimination provisions were
included in the law. Employers
were, and still are, prohibited from requiring specific
documents as evidence
of identity and work
must also avoid asking certain questions that would
about an individual’s national origin or
At the same
time, IRCA created
a pathway for certain segments of the
undocumented population to become
was granted to those
who had entered the
U.S. before January
1, 1982, had resided
in the country continuously since then, and
had paid back taxes and
had no criminal records. Nearly 3 million
people were able to legalize their status as a result of the law.
IRCA was intended to drastically curb unauthorized migration. But as history has shown, things didn’t work out exactly as
planned. However, IRCA did lay the ground work for a ne w focus
on immigration enforcement, both at the border and inside the
United States. In the employment context, this meant that companies hiring foreign nationals had to ensure that they complied
with their new legal obligations.
In 1990, Congress undertook a comprehensive revision of
the Immigration and Nationality Act, revamping it to include
a new set of employment-based immigrant visa categories. The
legislation also overhauled the H-1B nonimmigrant visa program
and created new obligations for companies that employed H-1B
workers. In 1996, Congress enacted the Illegal Immigration
Reform and Immigration Responsibility Act, which introduced
new penalties and thus made employment-based immigration
much more compliance-oriented.
Today, immigration has been woven into employment law.
Business immigration is now a thriving area of legal practice—
and a growing part of many corporations’ compliance programs.
Moreover, in many organizations without in-house legal departments, the immigration function is administered by human
resources, which typically has global responsibility for talent
The big challenge
these days is for corporate leaders to make
their voices heard
on issues related
to global mobility and immigration. In the United
site visits by government inspectors and more
requests for voluminous documentation
in support of what
used to be fairly routine
In the current political environment, we need
to do what we can to ensure
that anti-corporate bias does not
become part of our federal immigration policy. Immigration is not
traditionally a partisan issue—or at
least it shouldn’t be. Let’s not forget that the immigration-friendly 1970, 1986 and 1990 laws were put in place under
Republican presidents, while the more-restrictive 1996 legislation was enacted under a Democratic administration.
Meanwhile, we will continue to see the demographics of the
country change. As the U. S. birthrate continues to fall, immigrants will become critical to fueling the growth of the work-ing-age population.
I have spent my career firmly believing that a sensible
employment-based immigration scheme benefits our nation’s
economy. Immigrant entrepreneurs and other highly skilled
foreign workers, for example, start businesses at higher rates
than native-born Americans, and those enterprises create jobs
I built my firm, which now has more than 2,000 immigration professionals working in 18 countries, with the expectation
that employment-based immigration would continue to grow in
a globalized economy. Notwithstanding current political developments, that has certainly been true.
Austin T. Fragomen Jr. is a partner and chairman of Fragomen, Del
Rey, Bernsen & Loewy LLP, in New York City, and chairman of the
Council for Global Immigration’s board of directors.