The U.S. government currently requires employers hiring foreign professionals to submit extensive documentation – including company description, organizational structure, finances, and recurring job classifications and descriptions – with nearly every individual immigration petition and application. This means that some employers submit the same pile of paperwork dozens, or even hundreds, of times per year. Outdated, paper-based applications and the submission of redundant information waste resources for both the government and employers. This burden has real world impacts. The average application for U.S. employment-based immigration takes employers five times longer than the government estimates (see Figure 1). Efforts to modernize the system, to date, have been ineffective. It is time to give American employers an immigration process that is as efficient and predictable as any in the world.
There is ample opportunity to modernize our immigration system. Similar to other government programs such as Trusted Traveler, Trusted Shipper and TSA Pre-Check, a “Trusted Employer” program would allow the government to pre-certify U.S. employers that have a proven track record of compliance with federal immigration laws and regulations, streamlining adjudication and freeing up government officials to focus on other priorities including backlog reduction and visa fraud detection and prevention. As the government has taken steps to move forms and other processes to online electronic formats, we envision a seamless electronic Trusted Employer system that rewards compliant employers by speeding up outdated bureaucratic processes and improves both consistency and predictability in the application process. A predictable and transparent Trusted Employer system ultimately would benefit everyone by saving resources for the government and employers alike (see Figure 2). These savings could be invested in other priorities, a win for all.
“Employers and the government would both benefit tremendously from modernizing the immigration process to improve efficiency while maintaining the integrity of the system. A well-conceived Trusted Employer program is a viable solution that would accomplish these important goals.”
- Michael Rosenfeld, Assistant General Counsel, The Walt Disney Company, March 2015
How Trusted Employer Works — More Efficiency for the Government and Employers
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 professional is qualified for the job?
Trusted Employer would answer the first question when an employer initially registers. This would free the government adjudicators to focus 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 agency priorities like backlog reduction and detecting and preventing fraud. After the Trusted Employer process is well-established, certified employers could then be permitted to have particular job classifications pre-approved for petition eligibility, which would further reduce the burden on the agency to examining just the employee’s qualifications. A well-established Trusted Employer program could ease the sharing of information and provide more consistent adjudications across all the agencies involved in immigration processing and enforcement.
Modernizing and Streamlining Immigration Processing
A core component of President Obama’s executive action concerns the modernization and streamlining of our immigration system. Allowing employers known to the agency to register as Trusted Employers will eliminate duplicative filing and review, saving scarce U.S. Citizenship and Immigration Services (USCIS) resources during a time when millions of new applications will enter the system. Trusted Employer should be available to any employer that can demonstrate a track record of compliance with applicable laws. While employers that routinely hire foreign professionals as part of their U.S. or global operations may realize the greatest efficiencies, the benefits will spread throughout the system as USCIS more strategically deploys its resources.
Before designating an employer under this program, the government would review the employer’s organizational structure, finances and compliance history. These fundamentals do not change frequently but could be reviewed by the government periodically or updated if they do change. Once an employer is designated as a Trusted Employer, each subsequent petition for individual workers would still have to demonstrate eligibility for the visa. A further enhancement of the program could involve pre-approval of particular job classifications for Trusted Employers, so that the petition review could be reduced to checking the individual employee’s eligibility for the pre-approved job classification.
Trusted Traveler ... Trusted Shipper ... Trusted Employer
In recent years, the Department of Homeland Security (DHS) has expanded the Trusted Traveler and Trusted Shipper programs, both of which operate on the same premise as the proposed Trusted Employer program. For instance, Trusted Traveler provides an expedited security screening for frequent, low-risk travelers who have completed background checks, making the airport screening process more efficient for everyone. Likewise, Trusted Shipper provides expedited processing at ports for commercial carriers that meet certain eligibility requirements and have demonstrated security protocols in place.
Similar in concept, employer registration programs provide priority processing for trusted employers in other countries, such as Australia, Denmark, Ireland and Italy. For example, in December 2014, Ireland began piloting a Trusted Partner program that allows employers who are members of Enterprise Ireland and the Industrial Development Authority of Ireland (two entities that promote foreign industry and enterprise in Ireland) to file less documentation and receive faster processing for work permits.[i] It is expected that work permits will be processed in just a couple of days, as opposed to the typical 15 to 20 day processing time frame.
Administrative and Congressional Support
The need for streamlined and efficient processing at our immigration agencies was highlighted by President Obama in his 2013 principles for immigration reform: “For the sake of our economy and our security, legal immigration should be simple and efficient.”[ii] This idea was once again highlighted in a November 21, 2014, presidential memorandum, which ordered the DOS and DHS to work with multiple agencies and gather input from employers to “streamline and improve the legal immigration system, including immigrant and nonimmigrant visa processing, with a focus on reforms that reduce government costs, improve services for applicants, reduce burdens on employers, and combat waste, fraud and abuse in the system.”
“Intel Ireland welcomes the Trusted Partner pilot scheme, which will offer a greatly streamlined work permit application process, making the system more flexible and responsive to changing economic circumstances.”
Maria O’Neill, Strategic Immigration Manager, Intel Ireland, December 2014
A significant step in this direction is being undertaken as part of the Beyond the Border Action Plan – an agreement signed in 2011 by the United States and Canada to facilitate the crossing of goods and people between the world’s largest trading partners. The U.S. government announced on January 8, 2015, that it is set to pilot a Known Employer program in 2015 – a pilot that may contain some of the elements of a Trusted Employer concept. The pilot will take place on the U.S.-Canada border and impact applications for admissions to the United States for Canadian L-1s and TNs.[iii] Lessons learned from this pilot should inform the expansion of a Trusted Employer program to other nonimmigrant and immigrant petitions filed directly with USCIS or labor certifications filed with the Department of Labor. As the government works to modernize and streamline the U.S. immigration system through the president’s executive action, a Trusted Employer program that extends across agencies would help reach those goals.
The advantages of Trusted Employer have been apparent to both Democrats and Republicans for a number of years. Most recently, Trusted Employer provisions were included in the following:
Supplying Knowledge-based Immigrants and Lifting Levels of STEM (SKILLS) Visa Act of 2013 (H.R. 2131), introduced by Representative Darrell Issa (R-Calif.) and supported by Chairman Bob Goodlatte (R-Va.)
Immigration Driving Entrepreneurship in America Act of 2011 (H.R. 2161), introduced by Representative Zoe Lofgren (D-Calif.)
Real Enforcement with Practical Answers for Immigration Reform proposal of 2010, by Senator Charles Schumer (D-N.Y.)
Securing Knowledge Innovation and Leadership Acts of 2006 and 2007 (S. 2691/H.R. 5744; S. 1083/H.R. 1930), introduced by Senator John Cornyn (R-Texas) and former Representative John Shadegg (R-Ariz.)
Comprehensive Immigration Reform Act of 2006 (S. 2611), in which Senate Democrats and Republicans included and passed a Trusted Employer provision
Employers, the administration and members of Congress on both sides of the aisle agree that a Trusted Employer program to achieve more timely, efficient and predictable processing is needed in today’s immigration system. Ultimately, a well-conceived Trusted Employer program would save precious time and money, and put the United States on par with other countries competing for top global talent. With likely the greatest processing volume USCIS has ever seen on the horizon, now is the time for Trusted Employer.
“We are pleased to see the Obama administration testing a Known Employer pilot on the northern border. Employers need efficiency, certainty and predictability throughout the entire immigration system, and this is an important first step.”
- Lynn Shotwell, Executive Director, CFGI, March 2015
[iii] Department of Homeland Security, Beyond the Border: A Shared Vision for Perimeter Security and Economic Competitiveness, “Known Employer Program,” January 8, 2015, http://www.dhs.gov/beyond-border