In 1938, David Ogilvy arrived in New Jersey from his native England and established his own professional brand in a rapidly growing nation, writing the original ad-industry immigrant success story. These days, however, the chances of someone from abroad following in his footsteps are ever slimmer, even as the value of top international talent continues to grow.
Since Donald Trump assumed the presidency in 2016, bringing and keeping foreign employees stateside has meant navigating “quick and often unpredictable changes in immigration policies,” says Interpublic Group chairman and CEO Michael Roth. “The business immigration process has become increasingly complex. Cases that would have been routinely approved are now being challenged and sometimes rejected. Each case requires more time, effort and uncertainty for all.”
Steve Navarre, principal attorney at Chicago firm Navarre Law, who handles immigration matters for multiple advertising companies, has been practicing for nearly three decades and says “the stress level has never been higher.” As another legal expert speaking on condition of anonymity put it, “Everything changed shortly after Trump took office.”
And yet, Mark Koestler, a partner and chair of the immigration group at New York law firm Kramer Levin who works with agencies and holding companies, says many clients are increasingly willing to shoulder added costs and frustration. Why? Because they need to hire “the best and brightest” from around the world in order to be competitive.
“Our industry is all about coming up with great ideas,” notes Gut and David Miami co-founder Anselmo Ramos, “and that’s so hard to find that when you do, it’s very special.”
Protecting American workers or hurting American businesses?
U.S. advertising and PR firms used H-1B—a temporary visa concerning work in specialty fields—to hire just under 3,000 people during fiscal year 2018, ranking 27th on a list of all industries. Top employers included GroupM, R/GA, IPG Mediabrands and Droga5. While H-1B is the only visa to appear in public records, it is one of five types commonly used by ad agencies, meaning the total foreign nationals they employ in the States each year is considerably higher than the number listed above.
These range from O-1 “extraordinary ability” visas, which usually apply to accomplished creatives, and L-1 “non-immigrant” visas used to transfer executives from overseas offices to those in the States, to TN and E-3 visas, which apply only to residents of North America and Australia, respectively.
Between 2017 and 2018, H-1B hires within the ad industry declined by more than 10%, and the fact that this drop occurred early in Donald Trump’s presidency is not a coincidence.
While running for president, Trump blamed the use of such visas for holding down wages and elevating U.S. unemployment rates. One of his first major post-inauguration moves was the Buy American and Hire American (BAHA) executive order, which promised changes to the H-1B visa system to “protect the interests of United States workers” by approving only “the most-skilled or highest-paid” applicants.
“Ensuring the integrity of the immigration benefits system is one of this administration’s guiding principles in the effort to strengthen employment-based visa programs and protect American workers,” says U.S. Citizenship and Immigration Services spokesperson Jessica Collins. “It is incumbent upon the petitioner, not the government, to demonstrate that he or she meets the eligibility under the law for a desired immigration benefit. USCIS continues to adjudicate all petitions, applications and requests fairly, efficiently and effectively on a case-by-case basis to determine if they meet all standards required under applicable laws and regulations.”
Trump initially implied that the order was aimed at leveling a tilted playing field and sending more entry-level IT jobs to American citizens rather than outsourcing or consulting firms like Deloitte and Accenture. But Navarre says BAHA and other policy changes—such as rescinding the Obama administration’s International Entrepreneur Rule and a longstanding memorandum that directed federal agencies to honor prior visa adjudication decisions—have erected new roadblocks for agencies and similar businesses looking to attract and retain the staffers they need to excel in the U.S. market.
Koestler, Roth and Navarre also cited a dramatic increase in requests for evidence (RFE) and other documents like W-2 forms, which slow down the visa and green-card processes and make approval less likely for all sorts of applicants.
A November 2018 survey from libertarian think tank Cato Institute noted that overall immigration application denial rates jumped approximately 37% from 2016 to 2018. The National Foundation for American Policy, another free-market research group, found that H-1Bs in particular were 300% more likely to be denied in early 2019 than in 2016.
Koestler says the trend also applies to longtime visa holders whose applications would have been approved in years past. “This puts people in a terrible position,” he says. “If they don’t have something to fall back on, they may have to leave [the country].”
Some of Navarre’s agency clients have recently opted to pass on qualified candidates who required work visas in order to avoid related hassles. “I think [that] is exactly what people in the administration want,” he says. Despite its rhetoric about enforcing established law, Navarre believes the Trump White House’s ultimate goal is to reduce the number of foreigners allowed to enter this country, however valuable they may be to American businesses.
Analytics—an area of particular interest to the advertising industry—has been especially hard-hit by immigration restrictions. Because data experts come from different academic backgrounds at the intersection of IT, statistics and marketing, Navarre says USCIS can use a dated standard that requires a single area of college study for each specialty to reject their applications outright.
Dodging the political crossfire
Despite the fact that immigration affects advertising so directly, industry leaders have not been particularly vocal in opposing Trump’s increasingly hostile rhetoric and policies. By contrast, big tech companies like Apple, Facebook, Google and Microsoft have loudly voiced their hostility to everything from changes in the visa system to the “zero tolerance” approach that directed Customs to prosecute undocumented border crossers and separate them from their children.
One exception: The “travel ban,” which Trump imposed on seven majority-Muslim countries shortly after taking office, inspired four holding company CEOs to issue statements in support of their employees and clients around the world. In late 2018, IPG also hosted a call to discuss how the administration’s changes to DACA, or the Obama policy allowing individuals brought into this country as undocumented children to qualify for work permits, might affect employees.
Ramos, who arrived in the U.S. in 1988 and became a citizen five years after earning his green card, says immigration reform has not received as much attention from the creative community because it remains too controversial, even as political lightning rods like firearm background checks achieve some measure of bipartisan support and inspire a wide variety of PSA campaigns.
“Immigration is the thing that is defining us the most right now, and that’s probably why,” he adds. “It’s divided the country.”
No agency knows this better than the one named after advertising’s most famous immigrant. Ogilvy has recently struggled with the inherent contradictions of creating Aeromexico campaigns that mock Trump’s much-discussed border wall while simultaneously working to recruit new Customs and Border Protection agents who will enforce the same administration’s increasingly restrictive immigration policies.
Roth has been a member of the White House Business Roundtable under both Obama and Trump and is thus in a position to view the issue from an industry and policy perspective. “The business roundtable is clear on this front: To maintain our place as the global hub of innovation, the U.S. must modernize its immigration system so companies like IPG can recruit and retain top talent,” he says. “This requires advancing policies that deliver certainty for businesses, workers and their families.”
Whether the Trump administration agrees remains to be seen.