Even after the conclusion of the SHRM Global Mobility and Immigration Symposium on October 6th, I remained buzzing with excitement. I took literally thirteen pages of notes during the various panels, sessions and meetings I attended, and of course I immediately started crafting the next immigration conference tome in my head on the bus ride back.
I've loved writing about my conference experiences. I wrote about the Worldwide ERC conference that took place just a few weeks before SHRM, the American Immigration Lawyers Association (AILA) annual conference earlier in June and the inaugural AILA immigration tech summit in May. Not only is the writing itself fun, I also get to bring these conferences to the people who couldn’t make them. Sure, the recordings are up after the event is over, but will you really listen to them, especially in full?
So this article will discuss the SHRM immigration symposium (I also call it “the conference” throughout this article), specifically with three immigration tech questions in mind:
- What’s new with the H-1B pre-registration system?
- Is the DOL FLAG system getting better anytime soon?
- What are in-house immigration teams actually automating?
But before getting into it, I must say that overall, the conference was really awesome. I feel like I’ve been saying that every time, but truthfully each conference I’ve been to this year has mostly left me happy.
First, I appreciated how interesting, and substantive, the sessions were - attorneys discussing immigration processing trends, government officials reporting on statistics and answering tough questions, and keynote speakers that were anything but boring, evoking inspiration, frustration, anger and hope.
I also thought the lunch sessions were excellent for networking and had delicious food and drink (i.e. it wasn’t just finger food). The evening events were solid too, and I had the chance to actually wind down, have a beer, and really connect with fellow conference-goers.
So if you’re considering going to the SHRM immigration symposium next year, I highly recommend it. As an immigration lawyer you can really learn from the sessions, broaden your network and maybe even meet some prospective clients. As an in-house immigration professional you can learn what other, perhaps larger companies are doing and come back with actionable ideas.
And as someone who services the immigration industry more broadly, especially in the tech space, you can truly get a feel for the broader state of immigration technology.
That’s what this article is about.
Alright, onto the main course.
What’s new with the H-1B pre-registration system?
There’s been a lot of talk about the H-1B pre-registration system. If you’re not yet up to speed on it, the gist is that in 2018, United States Citizenship and Immigration Services (USCIS) put out a proposal that would require, among other things, H-1B employers to register online prior to submitting an H-1B petition.
Some applauded this effort, believing that it will end unnecessary pre-work, particularly given the fact that, since 2013, the H-1B cap has been met every year within the first five days, meaning employers put together entire H-1B petitions and send them out to USCIS knowing that a percentage of them will be rejected.
Others criticized the proposal, saying that it will encourage H-1B candidates to opportunistically seek employment from as many employers as possible, that law firms won’t have enough time to put together sufficiently strong petitions because they won’t be able to start as far in advance as they normally do, and some other specific reasons I won’t go into here. I wrote a bit about it in late 2018 in case you’re interested.
Well, the proposal was accepted, and USCIS confirmed that it would be rolling out an H-1B pre-registration system.
Then, USCIS announced a plan to charge employers a $10 fee to submit applications through this H-1B pre-registration system.
So it is happening. But the biggest questions on everyone’s mind has been… WHEN?
Well, we finally got some insight into that questions at the conference during the opening keynote session - a conversation between Austin T. Fragomen, Jr., partner and chairman of multinational immigration law Fragomen, and Kenneth T. Cuccinelli II, acting director, USCIS.
*Side note - since the conference, Mr. Cuccinelli has been promoted to acting deputy secretary of the Department of Homeland Security (DHS).
Given that we were at an immigration HR conference and the audience was full of immigration lawyers and in-house staff, all of whom are, presumably, pro-immigration, there was certainly tension in the room.
Their discussion started off with some chit chat. Then the first big question - Mr. Fragomen asked about the current immigration climate and how to best move forward. Mr. Cuccinelli, composed and stately, answered that it’s not the job of USCIS, or any other agency, to answer the question, “what’s needed in the immigration space?” USCIS, he said, is a “vetting agency” and its principal job is to protect the integrity of the US immigration system, and the country itself.
I could sense folks shifting uncomfortably in their seats.
Mr. Fragomen asked a few more questions, and then finally got to the elephant in the room - the H-1B pre-registration system. Companies that file H-1B cap cases start their petitions early, sometimes as early as November or December, he explained. What’s going on with the H-1B pre-registration system?
Everyone shifted again, but this time to the edge of their seats. Ears perked up and eyes lifted away from smartphones.
This isn’t a direct quote, but Mr. Cuccinelli’s answer went something like, “I have a fairly high degree of confidence that we will be ready on time and sufficiently on time so as not to not tie everyone in a pretzel.”
Not surprisingly a non-committal answer, but certainly leaning in the direction of “it’s happening.” What Mr. Cuccinelli was somewhat sure about, though, was that there would be a decision this calendar year. Likely in a matter of weeks, he said.
The only thing he was 100% sure about was the fact that the $10 registration fee would be finalized and added to the federal register the following week. That did in fact happen just a few days later.
So on the morning of the first full day, we already had our first major takeaway. The $10 fee is a go, and we’ll get a go or no-go about the system itself hopefully within a few weeks, but definitely before the end of 2019.
I spoke to some folks afterwards, and many of them were frustrated. It’s getting down to the wire in terms of starting to prep for cap season, and still no one knows what’s going on.
I have some good news, though. As you’ll see below, when it comes to the Department of Labor’s (DOL’s) FLAG system, we know exactly what’s happening. A whole lot of nothing.
Is the DOL FLAG system getting better anytime soon?
Nope.
Honestly, I really wanted that answer to be the entire section - partly because I thought it would be funny, but mostly because that’s all you really need to know.
But I did have an interesting, somewhat uncomfortable conversation about FLAG with Mr. Bill Rabung, the director of operations at the Office of Foreign Labor Certification (OFLC), the agency within DOL responsible for FLAG.
To take a step back, there were a few panels at the conference with government officials giving updates and sharing statistics about their respective agencies. Most, if not all of these stats were already publicly available, so I’ll be honest - I didn’t take many notes.
But when it got to Mr. Rabung from DOL, I started typing feverishly.
He started off with a joke, surely to ease the tension in the room. FLAG, he noted, had been out for a month. “We think it’s working great.”
The room erupted in cathartic laughter. Surely someone’s eye must have twitched nervously.
Mr. Rabung walked the room through what I already knew from the various DOL sessions at the AILA annual conference: there are user manuals and video tutorials on the website, there’s a technical help desk that should be utilized in the event of a bug or other technical malfunction, and non-technical questions and issues should be addressed to agency liaisons. I’m not sure if SHRM has a DOL liaison, but I know AILA does.
Mr. Rabung also noted that DOL is building FLAG in small chunks (via agile methodology), so we can expect more features as time goes on. He then assured us that LCA processing times will remain at 7 days.
Someone asked Mr. Rabung whether he had any insight into the H-1B pre-registration system. He said that he had sat in on Mr. Cuccinelli’s talk and that he did feel optimistic that USCIS would indeed make a decision in a matter of weeks.
This was all well and good, but where were the challenging questions? Did anyone care to dig into FLAG at all? How about with respect to LCAs? I had written down a question in bold, red text. I was waiting to raise my hand and ask, but the opportunity never came. All of a sudden, the moderator was saying thank you, there was applause, and the panelists started getting out of their seats.
Now mind you, I sat in the front row. It was uncomfortably close to the speakers. I wanted to make sure to hear every word, and to be first in line to ask a question.
So when I realized the panel was over and they were all getting up to leave, I jumped out of my seat, ran over to Mr. Rabung, and stuck out my hand.
“Mr. Rabung,” I told him, waiting for the handshake. “I’m Roman Zelichenko from LaborLess. I met you at the AILA conference in Orlando and had some questions about FLAG.”
Maybe it was my long hair or LaborLess t-shirt, or perhaps my insistence at the AILA conference back in June, but something jogged his memory. He said he remembered me.
A gift? A curse? I guess I’ll find out in due time.
I had a very specific question for Mr. Rabung, but first I had to set it up. The FLAG system doesn’t generate a case number when an LCA is created like iCert did, I told him. To comply with his own department’s notice requirements, practitioners previously posted an “initiated” LCA - a filled-out, not-yet-submitted Form 9035 with a unique “T-200” case number.
Now, with FLAG, there’s no unique LCA ID generated and no official Form 9035 prior to submission. And even after submission, it takes 30 or so minutes to get the file from the government via email.
This isn’t a small issue, either. On 9/30, the day before FLAG went live with the LCA, DOL put out a Practice Alert about this very issue. Importantly, AILA wrote:
...practitioners will need to prepare a separate Notice of Filing that complies with the regulatory requirements, instead of posting a copy of the ETA Form 9035 itself. The DOL Liaison Committee is actively engaged in conversations with DOL about the need for the system to generate a copy of the ETA Form 9035 before the case is filed, and are hopeful that this change will be implemented as a future system enhancement [emphasis added].
So my question to Mr. Rabung was essentially this: what’s the deal with this system enhancement??
Here’s what he told me.
Basically, he said that for the foreseeable future, FLAG will NOT change this functionality, that there won’t be the equivalent of an “initiated” LCA, or a corresponding T-200 number before submission.
I asked why, and Mr. Rabung told me that this is just how the system is built, and that we all basically just have to deal with it. I wasn’t expecting a super detailed technical response, but I was expecting a bit more than this. So this type of response made me realize something.
It made me realize that, likely, the team building FLAG straight up didn’t fully understand how iCert fit into the broader H-1B compliance process. That they didn’t know how important that initiated LCA and the corresponding T-200 number were to the way practitioners complied with DOL’s VERY OWN REGULATIONS.
Did they not engage with stakeholders? Did they not talk to practicing immigration lawyers, in-house immigration professionals and others when building out FLAG? Did they not sit down to map out a typical iCert user journey to see the bigger picture of how filling out and submitting an LCA affected other down-stream processes?
The frustrating thing is that anywhere else this would be unacceptable. And I get it, the government is a massive bureaucracy that will probably never work as efficiently as a for-profit tech company does. But this seemingly very low level of stakeholder involvement is objectively pretty bad.
Can you tell I’m frustrated?
I'll tell you why. My startup LaborLess automates the LCA process by enabling users to easily post electronic LCAs, create digital public access files and manage everything from a centralized, web-based dashboard. So we were just as anxious about FLAG rolling out LCA submission as our clients. And once FLAG was rolled out and we understood its limitations, we had to make some quick changes to keep up. Luckily the changes were small, but our clients, and many other immigration practitioners I’ve spoken to, were and still are confused by and frustrated with FLAG.
….
Hold on... I need to pour myself a glass of wine before I go on.
…
[Sips wine and takes a deep breath.]
Thanks for waiting. Where was I? Oh yea.
I thanked Mr. Rabung for his time and insight, and I went back to my computer to write his answer down. In bold, red letters.
I thought this would be my peak frustration during the conference. But how good is a conference really if your heart rate doesn’t spike at least twice?
Well, it happened. In fact, my biggest tech-related takeaway from the SHRM immigration conference, and the second time I "needed a beer," actually wasn’t from either of the government officials I mentioned above. Instead, it was the combination of two fleeting moments during two totally separate lawyer panels that culminated with a published SHRM interview.
What are in-house immigration teams actually automating?
There were two sessions I had earmarked before the conference even began. The first was called “One Size May Not Fit All - Scalable and Non-Scalable Immigration Solutions,” led by Christopher Wild, immigration team leader at Bloomberg.
It was a fascinating talk. Mr. Wild started the discussion by creating a foundational paradigm of “hot vs. cold,” a personalized vs. automated framework as a parallel to what is scalable and what isn’t. He told us about his time working in the emergency room prior to his legal career, and how some aspects of his job in the ER were “hot” in the sense that they required very personalized, emotionally present care whereas others were “cold” in that they simply had to get done without any human-ness involved.
Mr. Wild went on to talk about how he manages the immigration process within this spectrum. How some things require a hot, hands-on approach while others can be cold and therefore more efficient. The “cold” line of reasoning naturally led to a discussion around what can and should be automated, which brought in a considerable amount of audience participation.
One of the questions that came up during this discussion was around the LCA process: posting notice, creating PAFs, and so on. So Mr. Wild turned that question around and asked the audience: who automates their LCA process, particularly through some kind of automation or third-party service? Three or four hands went up.
Who handles the LCA process themselves, manually? Everyone else.
And then an audience member spoke up and asked, is it even possible to automate the LCA process?
My heart immediately started to race.
I was sitting in the front row (as I always do) with my LaborLess t-shirt (again, as always), and it took every part of my being not to shout out loud “YES, YOU CAN AUTOMATE YOUR LCA PROCESS!! COME TALK TO ME!!” But out of professional courtesy, of course, I kept my mouth shut.
Perhaps Mr. Wild could sense this, because he pointed to me and said that there was an “expert’ in the room who could answer the question. All of a sudden, I had everyone's undivided attention.
A few words stumbled out of my mouth, but I ended up saying something like “let’s talk after, I don’t want to take time away from Mr. Wild’s talk.” In hindsight, that was probably a lost opportunity because I had the spotlight. Oh well.
Ultimately I did end up talking to a few people about LCA automation after the session and gave out my card. I realized just how many people had no idea that automation was even possible, let alone what services or resources exist to make it happen.
But the problem became clear to me after the same type of thing happened at a second session. And since it happened twice, well, it was no longer an isolated incident. It was now a trend.
This second session was called “Practical New Solutions for Tech-Enabled Global Mobility,” and was led by Julie Pearl and Brendan Coggan from Pearl Law Group and Vivian Yuen from Electronic Arts. It was actually the only session during the entire conference with the word “tech” in its name, and was a fairly broad overview about how in-house immigration and global mobility teams can leverage technology.
There was talk of system integrations through application programming interfaces (APIs), which just means the ability of different systems to talk seamlessly to each other (e.g. your payroll system talking to your HR system).
There was talk of leveraging internal corporate sites as information repositories for business travelers, and understanding government-run immigration portals.
And then the conversation turned to I-9s, one of Pearl Law Group’s specialties. Indeed, their spin-off software Tracker provides robust I-9 automation capabilities. In other words, they know their stuff. The Pearl team mentioned that over the past few years, Immigration and Customs Enforcement (ICE) has really been ramping up their frequency of I-9 audits, and that it’s likely to stay that way or perhaps even grow. So I-9 compliance is important, and violations often occur as a result of human error, highlighting the importance of automation.
And then Julie Pearl asked the audience: who uses I-9 process automation software?
In a room of 30 or so people, only a small handful raised their hands. Everyone else was handling their I-9s manually.
I was in absolute shock. What had happened the day before during Mr. Wild’s presentation was happening here too. The folks in these rooms had either absolutely no idea that automation was possible, or they did but were still doing their work manually.
I was sitting next to Roy Maurer, a SHRM journalist, during this session. After it was over, we went over to chat and he asked me for my thoughts - I told him that technology is increasingly crucial in the modern corporate world, and that I was absolutely floored as to the lack of awareness around immigration tech solutions by folks at this conference. You can read the full SHRM article, and my thoughts, here.
So there it was. Two instances of large crowds of in-house immigration professionals not using, or even knowing about, relevant and potentially helpful immigration technology.
So what should we do about all this?
Despite the emotional ups and downs, the SHRM immigration symposium further strengthened my belief that much more needs to be done to educate immigration lawyers and other immigration professionals about immigration technology, and not just case management.
Immigration tech shouldn’t be the focus of just one or two sessions at a conference. It should be the focus of its own conference track, or, dare I say, an entire conference altogether.
And education doesn’t just mean “here’s what available.” It’s also understanding, what’s holding law firms and in-house teams from adopting tech? Is it lack of budget? Then let’s make a stronger business case for it. Is it because there’s too much work as is and not enough time to even think about innovation? Let’s figure out how investing some time on the front end in technology will eventually reduce or eliminate that backlog of work.
Plus, not only would this help private practice, it would probably trickle down to the government too. If the end users (immigration lawyers and in-house staff) become tech savvy, the government will kick it into high gear too.
This is why I’ve been attending so many immigration conferences and sharing my thoughts, particularly around tech, over the past few years. Because no one else is really doing it, at least not to this extent, and if the conversation doesn’t start somewhere, it won’t ever go anywhere.
If you’ve read this far, as always, thank you. Let’s keep the conversation going. Please like and share this article, comment with your thoughts, or reach out to me directly if you want to discuss immigration tech or collaborate!
Peace out.