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With over 11 million people expected to be legalized, millions more who will be eligible for new visa classifications and significant new enforcement requirements placed on the agencies, the government is going to have to work smarter and more efficiently if it wants to avoid a backlog of paperwork and processing that could cripple the system. One such solution is a Trusted Employer program.
The government currently requires employers to submit a company description, organizational structure, finances and recurring job classifications with nearly every individual immigration petition and application — even though employers may file many a year. Instead the government should create an option through which employers could pay a fee and be approved as a Trusted Employer, based on past and ongoing compliance with petitioning requirements. This would cut down on workload, freeing resources for other priorities.
"To augment our global supply chain security effort, we will work with the private sector and international partners to expand and integrate 'trusted traveler' and 'trusted shipper' programs that facilitate legitimate travel and trade while enhancing security."
-Secretary Janet Napolitano, Department of Homeland Security, State of America's Homeland Security Address, January 27, 2011
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Council-SHRM Proposed Solution
Like the similar government programs of Trusted Shipper, Trusted Traveler and TSA Pre-Check, Trusted Employer would allow the government to pre-qualify U.S. employers that have a proven track record of compliance with federal immigration laws and regulations, streamlining adjudication and saving precious government resources to focus on other priorities including backlog reduction and visa fraud detection and prevention.
Simultaneously, the government and employers would experience greater certainty, efficiency, and flexibility in the processing of petitions. A more predictable and transparent Trusted Employer system ultimately would benefit everyone by yielding more resources for case processing and priority initiatives. As the government has taken steps to move forms and other products to online electronic formats, we envision an electronic Trusted Employer system that could be seamlessly implemented. This would put America on par with our global economic competitors.
"The Trusted Employer program would allow respected employers to improve efficiency and eliminate waste, while also enabling government to use its resources sensibly. We see tremendous benefit from this program and its goal to help foster innovation."
-Michael Rosenfeld, Assistant General Counsel, The Walt Disney Company
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Only Compliant Employers Would Qualify for Trusted Employer
Trusted Employer would be available to employers of any size that choose to apply. They would qualify based on their track record of prior compliance with the applicable laws and regulations. Companies that routinely hire foreign nationals as part of their U.S. or global operations would realize the greatest benefits. To qualify, an employer would have to demonstrate to the government that it has the processes and tracking systems in place to comply with U.S. immigration laws. The government would review the employer's organizational structure, finances and history of compliance with employment laws on the initial Trusted Employer application. These fundamentals do not change frequently and the resulting certification could initially be for one year and then longer in the future. However, each petition would still have to establish that the position and the beneficiary were in compliance with applicable admission categories. The government would also require an annual accounting from each Trusted Employer. A further enhancement of the program could involve pre-approval of particular job categories for Trusted Employers, so that the petition review could be reduced to checking the individual employee's eligibility for the pre-approved job category.
Trusted Employer Would Create Efficiencies for the Government and Protect Against Fraud
During the visa petition process, the average employment-based adjudication addresses three questions:
- Has the employer proven it meets the legal requirements for sponsorship?
- Has the employer proven that the position qualifies for the immigration classification being requested?
- Has the employer proven the foreign national is qualified for the job?
Trusted Employers would answer the first question when an employer initially registers. This would free government adjudicators to hone in on the second and third questions on any petitions or applications submitted by an approved Trusted Employer. By refocusing limited government resources and identifying low-risk employers, adjudicators will be able to spend more time on backlog reduction, new caseloads and detecting and preventing fraud. After the Trusted Employer process is well-established, certified employers could then be permitted to have particular job categories pre-approved for petition eligibility, further reducing the burden on the agency on each petition to just the employee's qualifications. A well-established Trusted Employer program could also be extended to other immigration processes at the Department of Labor, Department of State, Immigration and Customs Enforcement and even Customs and Border Protection.
"What business needs is predictability."
-Eric Schmidt, Chairman, Google, White House Press Briefing, November 12, 2011
The U.S. Government and Other Countries Already Utilize Similar Programs
In recent years, the Department of Homeland Security has expanded the Trusted Traveler and Trusted Shipper programs, both of which operate on the same premise that a proposed Trusted Employer program would. Trusted Traveler provides an expedited lane for frequent, low-risk travelers at airports, making the screening process more efficient for everyone. Likewise, Trusted Shipper provides expedited processing at ports for commercial importers that meet certain eligibility requirements and have completed background checks.
Similar employer registration programs provide priority processing for highly trusted employers in other countries, such as Australia and the United Kingdom.
Bipartisan Support for Trusted Employer Registration
Over the years both Democrats and Republicans in Congress have supported ACIP's concept of Trusted Employer. In particular:
- Senate Democrats and Republicans passed a Trusted Employer provision as part of the Comprehensive Immigration Reform Act of 2006 (S. 2611);
- Senator John Cornyn's (R-TX) and former Representative John Shadegg's (R-AZ) Securing Knowledge Innovation and Leadership Acts of 2006 and 2007 (S. 2691/H.R. 5744; S. 1083/H.R. 1930) contained a Trusted Employer provision;
- Senator Charles Schumer's (D-NY) Real Enforcement with Practical Answers for Immigration Reform proposal from 2010 included Trusted Employer; and
- Representative Zoe Lofgren's (D-CA) Immigration Driving Entrepreneurship in America Act of 2011 (H.R. 2161) included Trusted Employer.
The need for streamlined processing, something Trusted Employer would accomplish, was highlighted by President Barack Obama in his 2013 principles for immigration reform: "For the sake of our economy and our security, legal immigration should be simple and efficient." The Obama administration has also sought to reduce burden and add streamlined processing to our laws through executive order. For example, Section 4 of Executive Order 13563 states that "Where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, each agency shall identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public." Trusted Employer would reduce paperwork burden and render more efficient and consistent decisions for employers that have proven their commitment to compliance. Once well-established, the program could be extended across all of the agencies involved in our immigration system.
"U.S. innovation needs a regulatory environment that is efficient, streamlined and protects against bad actors. A Trusted Employer system would allow compliant employers to focus on creating a healthy economy—not redundant paperwork—while allowing the agencies to devote more of their limited resources on detecting and preventing fraud and abuse."
-Thomas M. Barnett, J.D., Director, International Office, The Scripps Research Institute
Employers, the administration and members of Congress on both sides of the aisle agree that creating a more predictable and efficient system, saving time and money for the government, employers and professionals, and putting the United States on par with other countries competing for talent and investment is of great importance. Trusted Employer fulfills these objectives.
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