Navneet Chugh, The Chugh Firm. October 31, 2007.
The news has been filled with stories of one profession after another facing shortages of workers as the US economy continues to grow, overall unemployment remains at historically low levels and baby boomers are starting to retire in ever increasing numbers. While we hear about too few nurses, doctors, teachers, engineers – but we’re not hearing about a looming shortage of lawyers.
The perception in and out of the profession for many years is that the US has far too many lawyers. And without getting in to the controversial debate over whether America is too litigious or whether non-lawyers should be able to take on more forms of work traditionally considered legal in nature, the same demographic and economic pressures affecting the rest of the workforce are affecting the legal profession. Baby boomers have begun retiring and the number of workers replacing them cannot keep up.
Furthermore, US law firms – particularly the country’s largest law firms – have done a brilliant job competing for global legal work and that has driven their continued growth. The largest law firms in the US have now crossed the 3,000 lawyer mark and there is no reason to expect this trend to slow anytime soon. Those firms hire an incredibly large number of students. Latham and Watkins, the number four law firm in the NLJ 250 survey, hired 268 summer associates last year compared to just 164 in 2004.
Finally, a most surprising trend – one that has never been a problem for American employers in prior generations – is a reverse brain drain where American lawyers are being recruited by foreign law firms that place a high value on American legal experience or top American legal education. The National Law Journal recently reported a single year jump of 23% in the number of American law graduates going to work for foreign firms.
The pressures on the legal labor market are starting to show up in the statistics. The number of law students graduating from US law schools each is approximately 40,000 and that number has been relatively flat for several years. The number being recruited to work for NLJ 250 firms is now about 10,000 and the demand is increasing year to year. While producing more lawyers is not as difficult as producing more physicians or more pharmacists, the fact that virtually all professions are facing shortages at the same time that are expected to get worse, simply saying that we will increase the number of lawyers is not so simple when there is considerable competition to attract students.
Law firms are using a variety of strategies to address the crisis. Most involve traditional techniques like more aggressively recruiting, opening doors for women and minority attorneys, raising salaries and the often counterproductive strategy of trying to get lawyers to bill astronomically large numbers of hours.
The top law firms are also going further down the list as far as considering applicants from schools that are not in the top tier and are considering students that are graduating lower in their class, but they also face limits as they must maintain a quality edge if they are to compete for global work.
A growing number of firms are starting to take their cues from other professions and their overseas competitors and have begun to seek out global legal talent. In the past, many international lawyers were recruited from the ranks of those pursuing J.D. and LLM degrees from US law schools. That pool of students is still an important source of talent. But American law firms are now combing the planet in search of top lawyers.
Nowhere is this more evident than in Australia where US firms have been recruiting heavily. Ask a lawyer at any large Sidney law firm and you’re likely to get an earful about American and UK firms pursuing their lawyers. Well-known attorney recruiting firm Major, Hagen and Africa (www.mlaglobal.com) recently launched an Australia initiative and more firms are likely to follow soon.
Why Australia ? Several reasons:
– English fluency
– A common law legal tradition similar to America ’s
– Lower salaries in Australian firms compared to their counterparts in the US
– A new visa category specifically available to Australians that makes getting work authorization in the US much faster and easier
Most of the Australians are heading to New York firms or branch offices. New York has traditionally been the state with the most liberal requirements for foreign lawyers seeking entry to the US and much of the international transactional work that is driving demand for more lawyers happens in the Big Apple.
But New York is far from the only place where international lawyers are headed. You’ll now find foreign lawyers in every state and in most large law firms. And smaller and mid-sized firms have gotten in to the game as well.
Assuming you are able to identify an attractive candidate from overseas, how does an employer weave its way through the immigration maze?
Non-Immigrant Visas – The Alphabet Soup
There’s a reason why there are 10,000 immigration lawyers in the United States (probably 90% of the world’s lawyers practicing in this field). The US has arguably the most complex set of immigration laws and the largest immigration bureaucracy of any country. And that’s very likely because despite several years of news stories describing America ’s declining popularity, the US is still far in front of any other country in terms of demand for visas.
Without getting in to a long discussion of how the US immigration system works, it helps to know that essentially there are five types of statuses that any person in the US can have:
– US citizenship based on place of birth, having a US citizen parent or naturalization
– Lawful Permanent Residency (LPR), commonly referred to as the green card (and also called an immigrant visa)
– Non-immigrant status such as students, work visa holders and visitors
– asylum, refugee and temporary protected status
– unlawfully present immigrants
Lawyers practice in the US in all of these categories (yes, even the last category though that would typically only be the case for a lawyer who had a work visa and fell out of status).
This article focuses on non-immigrant and immigrant visa categories.
The H-1B visa
If you have been following the immigration debate in the news, you might have heard about Bill Gates making the rounds in Washington seeking more visas for technology workers. What most people don’t realize is that the H-1B visa – the temporary work visa used by America ’s technology companies to hire information technology professionals – is also the visa used by every other industry to hire foreign university-educated professionals.
The number of H-1B visas available today is the same as the number set in 1990 and has not kept up with overwhelming demand. The 65,000 allotted H-1B visas can be claimed up to six months before each new fiscal year begins and on April 1, 2007, the allotment for the fiscal year that began October 1, 2007 opened. Within hours, US Citizenship and Immigration Services received a staggering 200,000 applications and had to have a lottery to determine which companies would get their workers.
Law firms may have a slight edge, however. In the early part of this decade, Congress passed legislation creating a special bonus pool of 20,000 H-1B visas for those receiving advanced degrees from US universities. This covers foreign law students receiving JD and LLM degrees in the US . The 20,000 bonus visas were used up after just a few weeks in 2007, but at least a law firm able to file a case in early April could secure a visa with an October 1st start date without having to go through a lottery. Of course, not all firms have the luxury of being able to time an application for an April filing.
Congress has also created an exemption from the 65,000 visa limit for universities and non-profit research institutions so legal departments at those employers can use as many H-1Bs visas as they need.
H-1B applications for attorneys have a few key requirements:
– the applicant must have an employer sponsor
– the employer must demonstrate that the applicant will be paid the prevailing salary in the metro area or at least as much as similarly employed lawyers at the same firm possessing the same experience and credentials
– the employer can show that it has the ability to pay the offered salary
– the applicant has the requisite qualifications to work in the position (e.g. possession of the necessary education and a license, if required, or proof that all requirements for licensure have been met if actual possession of the visa is a requirement for licensure)
– demonstrating the position is one normally requiring a bachelors degree or higher (obviously this is not a problem to demonstrate for attorney positions)
One key issue for attorneys will be obtaining a license or demonstrating that a license is not required for the work to be performed. A foreign lawyer coming to the US to practice the lawyer’s home country law as a foreign legal consultant would only need to demonstrate he or she is qualified to practice that nation’s law.
Many states permit foreign lawyers to sit for the bar examination, though many require a demonstration that the foreign education is equivalent to a US legal education. Some states are very liberal and are popular locations for foreign lawyers to seek a license (such as New York ). Other states can be restrictive. Some states require a social security number to obtain a license, something that is basically impossible if one does not already have a work status in the US . In such a case, if the state will allow the lawyer to sit for the bar exam and otherwise satisfy all of the licensing requirements and a state bar will verify this, USCIS may issue an H-1B.
Some attorneys will also seek an H-1B as a law clerk or a paralegal. A law clerk position will normally require at least a bachelors degree and a bachelors degree for a paralegal is something frequently required in that profession.
H-1B applications are initially filed with US Citizenship and Immigration Services and the processing times vary depending on where the case is filed and how much money is paid. Normal processing takes three to four months. For $1000 on top of normal filing fees, a case will be decided in 15 days or less.
The $1000 for speedy processing is just the start, however, on the USCIS fees. H-1B employers also must pay roughly $800 in base filing fees plus potentially another $750 or $1500 depending on the size of the employer and the type of employer (universities and non-profit research institutions may be able to avoid the fees).
After USCIS approves the initial applications, persons in the US (such as those on student visas) can begin work if an H-1B number is available. If an applicant is not changing their status in the US , then a US consulate abroad will process a visa application. The waiting time can be just a few days up to a few months depending on the demand for appointments at the particular consulate. Consular fees will usually run a few hundred dollars and vary depend on reciprocal agreements between the US and the applicant’s country.
Congress is expected to take up legislation soon that would increase the number of H-1B visas available and create new exemptions from the H-1B cap that could make this a more user-friendly category in the future.
Another popular visa strategy for hiring a foreign lawyer is to apply based on a treaty between the US and the lawyer’s home country.
Canadian and Mexican lawyers can apply for TN visas based on the North American Free Trade Agreement (NAFTA). There are few restrictions except that a lawyer must be licensed either in the US or in the home country and the lawyer needs an employer sponsor in the US . There is no limit on the number of TNs that can be issued in a year and an applicant can apply for issuance of the TN classification on the spot at a US port of entry (usually at an airport or a land crossing).
As noted above, Australian lawyers can apply for E-3 visas. The requirements for the E-3 are essentially the same as for the H-1B visa including possessing a license or showing that all requirements for licensure have been met except for providing a visa. 10,000 E-3 visas are available each year. However, this supply has so far exceeded demand by a wide margin.
While Australians can pursue H-1Bs and other categories, there are a couple of key benefits that make the E-3 attractive (aside from its general availability when the H-1B cap is filled). First, E-3s can be filed directly at a US consulate. This means that expensive USCIS filing fees applicable to H-1Bs are not collected. It also means that a visa can be secured in a matter of days as opposed to several months. Another key benefit of the E-3 is that spouses can obtain a card granting permission to work for any employer as long as the attorney spouse remains in E-3 status.
Nationals of Singapore and Chile were recently granted a special H-1B visa category of their own with an annual allocation of over 5,000 visas.
And national of more than 50 countries are eligible for E-1 and E-2 visas. E-1 treaty trader visas are available to people from a country with a commercial trade treaty with the US who are engaged in trade between the US and the treaty country. Trade in services, such as legal services, is a permitted form of trade under the E-1 category. The employer must be majority-owned by nationals of the treaty country (and green card holders or dual citizens in the US don’t count). This then means that the E-1 is basically only available to foreign law firms with offices in the US or instances where a lawyer has her own practice and is contracting services out to other firms. The E-1 also requires a substantial volume of trade between the US and the treaty country. This might not be a problem for a US branch office of a foreign law firm as long as it can demonstrate that the majority of the work involves matters involving the treaty country.
E-2 treaty investor visas are used much more frequently and are based on the making of a substantial investment in a commercial enterprise in the US . Like the E-1, the majority of the ownership has to be in the hands of nationals of the treaty company. E-2 status is tied to the size of the investment. US immigration rules do not specify a dollar amount to qualify for the E-2, though if a foreign firm can demonstrate it has a business plan and can document adequate capital to run the office, this often will satisfy a consular officer.
The E-1 and E-2 are available to executives, managers and essential skills employees. This would normally include partners and attorneys with supervisory responsibilities. It would also include associates who have skill sets difficult to find in a local market. Like the E-3 visa, one can apply for the E-1 and E-2 directly at a consulate. However, some consulates can take many months to schedule an appointment. London , for example is backed up eight months. One advantage that is the same as the E-3 is the availability of work authorization for a spouse.
Law firms transferring in attorneys from an overseas office can take advantage of the L-1 intra-company transfer visa. There are several key requirements for L-1 visas:
– the attorney must have been employed abroad by the firm for a year
– the US office and the foreign office have a qualifying relationship. If the US office is a branch office, subsidiary, parent or has common ownership, then it likely will qualify; offices that are merely part of an alliance likely will not.
– the attorney must be coming in an executive, managerial or specialized knowledge capacity
– firm’s establishing a new office in the US will need to demonstrate it has sufficient business plans and capitalization to show it is financially viable and can afford to pay the transferee.
To meet the executive, managerial or specialized knowledge requirement, the firm will want to show that the attorney will be managing paralegals and, if applicable, other attorneys. Attorneys who manage a “function” can also qualify even if no personnel are being managed. Attorney with unusual specialties and skill sets can also qualify as specialized knowledge employees if the firm can show that it would be impractical to find someone in the local market with a similar expertise.
To meet the requirement for a qualifying relationship, traditional branch offices are normally fine as are typical law firm partnerships and corporate structures where each office is owned 100% by the partnership or the corporation. Problems may arise, however, if the US and the foreign office operate under the same name but have different ownership structures. If one owner controls 50% or more of both offices, then there will be no problem as the offices will be considered affiliates. If no party has a controlling interest and the ownership breakdown of each office is not the same, there could be a problem. A joint venture between two firms may qualify despite the fact that the foreign firm does not have a controlling interest in the US branch as long as the foreign entity transferring the attorney has a 50% interest. Many firms have offices that operate under the same name, but are independently owned and merely part of an alliance. These types of relationships will also not qualify.
L-1A visas are available to managers and executives and can be obtained for up to seven years. L-1Bs are available to specialized knowledge employees and can be obtained for up to five years. Employees of new offices will be approved for an initial period of a year and then can be extended.
L-2 spouses are permitted to seek independent employment authorization after entering the US . Two to three months are normally needed to acquire an employment card.
The J-1 exchange visitor trainee category allows those coming for training in public administration and law to come to the US for up to 18 months. An employer can work through an approved J-1 exchange program which is charged with making sure that the employer provides genuine and proper training.
An employer sponsor will need to provide a training program that describes the training objectives, the skills the trainee attorney will acquire or be exposed to through the training program and justify the use of on-the-job training. The sponsor must also provide details on the stipend to be paid to the trainee and an estimate of living costs in the US .
The H-3 trainee category is also available, but for attorneys is almost never the best category since productive employment is not permitted. The J-1, in contrast, allows the training to be conducted in the setting of productive employment. A J-1 also does not need to show that the training is unavailable in the home country.
The J-1 may also be the visa of choice for attorneys who are not able to or interested in acquiring a state law license. J-1s can be used by those in law clerk or paralegal positions as well as foreign legal specialist positions.
Like the E and L categories, J-2 spouses are permitted to seek employment authorization after entering the US in J-2 status.
Foreign students on F-1 student visas are entitled to a one year work authorization period called “optional practical training” upon conclusion of their studies. Given the large number of LLM students at US law schools, this can be useful especially given the scarcity of H-1B visas. The OP T can often allow for the lawyer to work legally while waiting on an H-1B visa number to become available or until work authorization tied to permanent residency comes through.
Sometimes going through the complicated application process to obtain a work visa may not be necessary and an attorney can enter as a B-1 business visitor.
B-1 visitors must meet the following basic tests:
• Have a residence in a foreign country, which they do not intend to abandon;
• Intend to enter the United States for a period of specifically limited duration; and
• Seek admission for the sole purpose of engaging in legitimate activities relating to business.
There are a number of legitimate activities in which lawyers typically engage that are specifically permitted by the State Department’s Foreign Affairs Manual:
1. Participating in seminars, conventions and conferences
2. Consulting with business associates or clients
3. Assisting clients negotiating contracts
4. Engaging in independent research
5. Board of directors and partnership meetings and related activities
6. Assisting investor clients in scoping out investment opportunities and engaging in startup activities
7. Attending trade shows
A key to B-1 cases is that the applicant has specific and realistic plans for the entire period of the contemplated visit. The absolute length of the stay is not as important as showing that the stay has some finite limit. But the total authorized stay on each entry is limited to 180 days (with extensions permitted).
The B-1 applicant must also be prepared to demonstrate permanent employment, meaningful business or financial connections, close family ties, or social or cultural associations, which will indicate a strong inducement to return to the country of origin. And the applicant should show a salary from abroad and adequate resources to demonstrate that there is no need to work illegally in the US .
Applicants from 27 countries that have no problems with visa overstays can qualify in the Visa Waiver Program which allows applicants to enter the US for up to 90 days without obtaining a visa stamp. The 27 current countries are Andorra , Australia , Austria , Belgium , Brunei , Denmark , Finland , France , Germany , Iceland , Ireland , Italy , Japan , Liechtenstein , Luxembourg , Monaco , New Zealand , the Netherlands , Norway , Portugal , San Marino , Singapore , Slovenia , Spain , Sweden , Switzerland , and the United Kingdom . Note that extensions of stay for Visa Waiver entrants are not permitted.
Finally, when an attorney is being paid by a foreign entity but coming to the US to perform activities similar to an H-1B or an H-3 worker, the B-1 may be used in lieu of the H-1B or H-3. But note that many consulates. In order for an employer to be considered a “foreign firm” the entity must have an office abroad and its payroll must be disbursed abroad. To qualify for a B-1 visa, the employee must customarily be employed by the foreign firm, the employing entity must pay the employee’s salary, and the source of the employee’s salary must be abroad. Note that many consulates are reluctant to issue B-1s in lieu of Hs and the firm should do research on the attitude of a consulate before pursuing this type of visa.
O-1 Extraordinary Ability Applicants
Attorneys who can demonstrate that they have extraordinary ability in their field of business can potentially qualify for O-1 visas. Applicants need to show that they have reached the top of their field either in the US , internationally or in the applicant’s home country.
O-1s need to show a single one time accomplishment demonstrating extraordinary ability or evidence showing a combination of at least three of the following:
– receipt of nationally or internationally recognized prizes or awards for excellence in the attorney’s field;
– documentation of the attorney’s membership in associations in the field which require outstanding achievements of their members, as judged by recognized national or international experts;
– published material in professional publications or major media or major media about the lawyer;
– evidence of the attorney’s participation on a panel, or individually, as a judge of the work of others in the field;
– evidence of the lawyer’s original contributions of major significance in the field;
– evidence of the attorney’s authorship of scholarly articles in professional journals or other major media;
– evidence that the attorney has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation;
– evidence that the lawyer has commanded and now commands a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.
O-1s are available for up to three years at a time and require a consultation letter from a peer group stating. For lawyers, this might include a local, state or national bar organization. The letter is essentially a statement indicating the group has no objection to the granting of the visa.
When a non-immigrant work visa is either not available or will not allow an employer to bring over an attorney for as long as needed, applying for permanent residency may be an option worth considering. Attorneys will normally qualify for permanent residendy in the EB-2 green card category reserved for those with advance degrees (a bachelors degree or higher).
Visas in the EB-2 category usually do not run out, though per country limits are currently causing delays for a few nationalities (including India and China ).
The key challenge for attorneys seeking permanent residency, however, is successfully navigating the labor certification process required for most applicants. A labor certification is a process where an employer goes through a recruitment process to demonstrate the lack of availability of qualified American job candidates immediately able to do the work. Employers must carefully define a job to make it clear what skill set is required for the position lest the rejection of a candidate not genuinely suitable for the position cause an application for a labor certification to be denied. Of course, rejecting a candidate with the necessary education and experience but lacking the “pedigree” suitable for a specific firm is not permissible in the labor certification process.
Like the H-1B category, an employer must demonstrate it is paying the prevailing wage and has the ability to pay the offered salary.
Multinational executives and managers
The EB-1 green card category has requirements very similar to the L-1 non-immigrant category except that specialized knowledge employees are not covered and a US office must be operational for at least one year. This will normally be the green card option of choice for those qualifying in multiple categories.
EB-1 green cards are available to those with extraordinary ability in business, athletics, the arts, education and science. The EB-1 is almost identical in its requirements to the O-1 category described above. EB-1 cases, however, do not require a peer group consultation.
National Interest Waiver
If a lawyer can demonstrate that his or her work provides a substantial benefit to the public, a green card may be possible in the EB-2 green card category. This category is rarely used by lawyers, though if one can, for example, demonstrate they are playing a critical role in economic development in the US or perhaps are playing are providing legal services of a public service nature. But USCIS often applies a very high standard in this category and will frequently want the applicant to demonstrate the benefits will be national in scope as opposed to local.
While the number of attorneys immigrating to the US has been relatively modest to date, that will certainly change in the years to come as the demand for the services of highly qualified attorneys will increase and the supply of attorneys will likely remain flat. With careful immigration planning, US and foreign law firms should be able to recruit legal talent globally.