Published by New England In-House, April 2006
Every company's hiring objective is to find the best-qualified candidate, and often that candidate will be a foreign national who requires visa sponsorship.
Whether your company is a start-up with a handful of employees or a long-established firm employing hundreds of workers, it is inevitable in today's market that you will have to navigate the maze of rules and regulations surrounding the employment of foreign nationals.
For example, a job applicant could be a recent college graduate on an F-1 student visa who has been granted an employment authorization card (EAD) for a one-year period to gain practical experience in the field. Or the applicant might hold a time-limited and employer-specific visa status, such as H-1B or TN professional.
In these cases, your company might need to file paperwork with the Citizenship and Immigration Service (CIS) seeking work authorization on the prospective worker's behalf.
Along with these filings is your company's obligation to maintain certain records at the company's offices. Employing a foreign national, even temporarily, requires a commitment of your company's administrative time and financial resources. Accordingly, efficient and cost-effective management of an immigration sponsorship requires a flexible company policy. In defining that policy you should consider the following guideposts:
Who should pay fees and expenses? The immigration sponsorship process can be expensive. While legal fees for temporary working visas will typically account for the majority of the costs, CIS filing fees can also be significant.
For instance, filing fees for an initial H-1B sponsorship can be as high as $2,190. In the immigrant visa (Green Card) sponsorship process total costs can easily exceed $10,000, due to recruitment costs and CIS filing fees (particularly where additional family members are included).
Having a policy that clearly articulates the rules on who pays for what will establish expectations with your employees and remove the possibility of claims of unequal or unfair treatment.
Although there are no set practices, it is common for employers to pick up the costs of the temporary or nonimmigrant visa sponsorship process in their entirety. Similarly, it is common for employers to split the costs of the Green Card sponsorship process with the employer on some basis.
In situations where the employer pays for more or all of the Green Card sponsorship, it is common for the employer to have the right to "claw-back" all or a portion of what it has paid in the sponsorship process if the employee leaves his or her employment within some number of years.
In the area of H-1B temporary visa sponsorship, CIS and Department of Labor (DOL) rules affect how costs can be shared.
First, the DOL rules state if the employee is required to pay for the costs of immigration counsel, those costs are to be subtracted from the employee's salary to assess whether the salary meets the DOL's prevailing wage standard.
Second, the CIS rules state that the company must pay the H-1B user fees (either $750 or $1,500 depending on company size) and H-1B filing fees ($190).
Finally, the employer cannot impose any penalty on the employee for ceasing employment prior to an agreed date, although the employer is entitled to liquidated damages.
Provide the sponsored worker with benchmarks for when the company will begin Green Card sponsorship. To maintain uniformity and retain internal control, it's important to establish clearly defined benchmarks for when the company will initiate Green Card sponsorship. The costs of the immigrant visa process are substantially greater than a temporary visa sponsorship.
Additionally, the process is longer and more complicated and puts a greater burden on your administrative and human resources staff. A good company policy will establish a rule for when the company will consider an immigration sponsorship (e.g., after one or two years of satisfactory employment) and leave entirely in the company's discretion whether it will sponsor the employee for an immigrant visa.
The policy should make it clear that the company will be in charge of how the sponsorship proceeds and should identify the individual(s) or position(s) vested with the authority to manage the sponsorship process.
Whose lawyer should be involved? Both temporary working visa and immigrant visa sponsorship involves the company applying or petitioning for the appropriate visa with the CIS or with the DOL. While the employee is an integral part of the sponsorship process, the paperwork is filed by the employer and focuses on the company and the position for which the employee is being sponsored.
The attorney who files the paperwork is, in the eyes of the CIS and DOL, representing the company and not the employee. Accordingly, your company must have a high degree of confidence in the quality and competence of the immigration attorney and ideally have an established relationship with that attorney.
A good immigration sponsorship policy will require either that immigration counsel selected by the employer handle the sponsorship process regardless of the cost or at least give the employer the right of approval over any immigration counsel selected by the employee.
If your policy imposes some of the Green Card costs on the employee, it is not uncommon that the employee will request that its immigration counsel — often located on the basis solely of cost and not competence — handle the process. Having a company policy that addresses this issue removes the possibility for conflict.
Appreciate that immigration policies need to be flexible. While it is important to clearly define your company's policy and to set appropriate benchmarks, it is also important to recognize that it will require flexibility and exceptions will need to be made. Your policy should include language expressly reserving the company's right to make exceptions.
Immigration sponsorship rarely runs perfectly. There are myriad factors from the business side that influence the decision making process, such as budget constraints, operational changes, corporate reorganizations and layoffs.
From the legal side, there are the ever-changing immigration laws, processes and procedures. There are also major fluctuations in the availability of employment-based immigrant visas.
For instance, many sponsored workers have to wait up to five years for an employment-based immigrant visa. Applying a rigid waiting period before the company will consider commencing work on a Green Card may be detrimental to both the company's and the employee's best interest.
A thoughtful and adaptive sponsorship policy is good for both the company and the sponsored immigrant. Good will, enhanced employee loyalty, lower employee stress, reduced work distraction and increased productivity all flow from it if wisely applied.
If you have questions concerning immigration sponsorship, please contact John Gallini.
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