Immigration Practice Pointers For The HR Professional
The HR professional receives legal advice from his or her immigration counsel, in-house immigration attorneys or specialists; however, it is also highly important for the HR professional to understand certain key immigration terms and concepts in order to adequately assist the company in hiring Foreign National Employees (FNEs) and meeting its personnel needs. The below practice pointers were gathered from our own professional experience and may not necessarily apply to every organization.1. Creation of Your Own Immigration Set of Policies, Guidelines, and Rules
The HR Professional can begin by creating a concise set of guidelines based on Immigration rules. These rules should be followed each time HR encounters the possibility of hiring a FNE. A standard immigration policy should include basic information listing the procedures/guidelines that will ensure that the company supports and complies with all applicable immigration laws.
These guidelines can be as broad as stating that every immigration decision will be up to management's discretion on a case by case basis; or as specific as a list of concrete policies for visa sponsorship. Relevant issues to be considered for inclusion would be the following:
a) Issues related to visas for FNE's dependents;
b) Payment of specific fees by the employer or FNE;
c) Timeframe of employment with the company before a greencard process is begun;
d) Protection of FNE's status if sent abroad on assignment;
e) Citizenship issues; and
f) Termination of employment and each party's Immigration responsibilities, among other topics.
Great emphasis must be placed on the sponsorship of temporary work visas (nonimmigrant), greencards (or immigrant visas), reentry permits for greencard holders, and the employer's legal obligation to cover specific costs, employees' responsibilities.
When an employer agrees to pursue a greencard for a FNE, there are generally three mandatory steps involved: first, the sponsoring employer must prepare and file a Labor Certification (PERM) with the Department of Labor (DOL); second, once the PERM has been approved, an Immigrant Petition for Alien Worker must be filed with U.S. Citizenship and Immigration Services (USCIS); and third, an Application to Adjust Status to Permanent Resident must be filed with USCIS. Each step has its own set of rules and requires specific documentation from the employer/FNE. Guidelines on the procedure for each step should be clearly stated in order to avoid future confusion. Also, because the PERM sponsor is required by law to cover the costs of the process, it's important to define in writing when an employer payment is required.2. Collaboration with Other HR Personnel Key to Efficiently Address Immigration Needs and Avoid Potential Noncompliance
It is critical to collaborate with other HR personnel within the organization in order to properly address immigration issues that could arise before, during, and after the hiring/employment of a FNE. Early detection of such issues can help avoid potentially serious legal consequences for the employer. These consequences could include civil and criminal fines and even prison time for company representatives who employed foreign nationals who did not have proper employment authorization.
In most instances, HR recruiters are the first to come in contact with foreign national candidates. They are the individuals responsible for screening resumes for potential applicants, submitting resumes for managers' review, contacting candidates, and gathering information required to move forward with immigration applications, among other duties. Nowadays, it is common practice to have applicants complete application questionnaires and answer specific questions such as "Are you legally authorized to work for any employer in the U.S.? Please specify;" "Can you provide evidence of employment authorization to work in the U.S.?;" or "Do you now, or will you in the future, require sponsorship for employment visa status to work in the U.S.?" It is important to note that the recruiter's inquiry into a candidate's immigration status must be balanced against Title VII's prohibition against national origin discrimination.
All of the above questions pursue the same fundamental aim: To gather the initial information required to make a proper immigration assessment. The candidate should volunteer information related to his immigration status and, at that point, the HR professional is able to further inquire and determine the following:
a) If visa sponsorship will be required or not;
b) If any additional visa documentation is needed from the FNE;
c) If the applicant is eligible for additional employment authorization (for instance, an H-1B visa holder who is transferring to a new company, but is running out of H-1B time and the company would not be able to continue extending the FNE's status beyond the final expiration or max out date; or an F-1 Student with an expiring Optional Practical Training (OPT) Employment Authorization Document and unable to extend it);
d) If the company has the capacity to absorb the usually high legal/filing costs involved with most of these visa sponsorships; or
e) If the company will be required to file additional petitions on behalf of the employee and/of family members (i.e. begin the greencard process within a shorter timeframe than is normal), among other considerations.
It is important for HR/recruiters to coordinate with department managers and make them aware of all the legal and financial implications of hiring a FNE. Management must have the full picture and know what to expect from the initial engagement - if it's worthwhile or cost effective to bring a foreign national candidate onboard or a candidate who wouldn't require employment authorization or Immigration sponsorship.3. Immigration Counsel Assistance
Immigration counsel should not only provide legal advice about the FNEs to HR professionals but should also prepare regular visa expiration reports for FNEs. These reports allow HR to keep track of each FNE's immigration status.
Immigration attorneys can also assist HR/management with reports including any future immigration filings that need to be processed within certain time (i.e., on a semester or yearly basis). This information can assist management in preparing their budgets for upcoming immigration-related expenses.
HR's role in obtaining the necessary documentation for in-house or external counsel is also critical. Pre-established HR checklists and employee questionnaires are extremely helpful in order to gather all the necessary supporting documentation for petition filings.4. Greencard Process
Many FNEs are interested in their company assisting them in their pursuit of lawful permanent residence (greencard). They often make their HR representative or recruiter aware of this fact prior to being hired. If HR or the recruiter receives such a request, they should inform management that permanent residency sponsorship may be necessary in order to continue extending legal employment status beyond the final visa/status max out expiration dates. This is particularly important for companies which are not ready to begin the greencard process soon after hiring a FNE and may have strict corporate policies/budget restrictions in place for this type of sponsorships.
HR and management should have a brief understanding of what the employment-based permanent residency process generally entails. As stated earlier, first, the sponsoring employer must prepare and file a Labor Certification (PERM) with the Department of Labor (DOL). The principle behind the PERM process is to determine that, after conducting a systematic recruitment, there is no willing, able, available, and qualified U.S. worker to perform the duties of the offered position. Second, once the PERM has been approved, an Immigrant Petition for Alien Worker must be filed with U.S. Citizenship and Immigration Services (USCIS) within 6 months of the PERM approval date; and third, an Application to Adjust Status to Permanent Resident or AOS must be filed with USCIS. This last application process allows dependents to apply for greencards at the same time as the principal employee.
In regards to the Initial PERM process, it is important to note that it requires substantial preparation from the sponsor including conducting mandatory recruitment, review of resumes, conducting a disqualification process, and preparation of a final recruitment report.
Also, for PERM recruitment, it is critical to draft a very specific job description with the assistance of immigration counsel. This is extremely useful for HR during the resume review and disqualification process, especially in this current economic market where employers can receive 100 + resumes per requisition. To make it more specific, the job description could include requirements such as knowledge of specific software required to perform the position, specific skills required, travel requirements, licenses, etc. These are feasible requirements that HR could use for their PERM job descriptions which could help them conduct a satisfactory recruitment process and be able to properly disqualify any potential PERM applicants.
It is not uncommon for the DOL to issue an audit or request for additional information or documentation on a PERM application. Employers must be ready to respond to these audits by providing complete evidence of the recruitment efforts such as resumes or business necessity letters to show why certain specific qualification requirements are required to properly perform the duties of the offered position, and other required documentation.
In order to continue sponsorship of the employee or candidate for permanent residency once the PERM has been approved by DOL, the employer must file an Immigrant Petition for Alien Worker, Form I-140, within 6 months of the PERM approval; otherwise the approved PERM is cancelled and no longer can be used to sponsor a FNE for permanent residency. If a PERM position requires experience from the applicant that was acquired through employment prior to the sponsoring employer, employment verification letters from the previous employers will be required. The experience letters will be submitted in conjunction with the I-140 Immigrant Petition for Alien Worker. It is critical that FNEs obtain their employment verification letters before filing the I-140 Immigrant Petition in order to avoid potential denials at the I-140 Immigrant Petition stage. These letters are key elements for an I-140 approval, in addition to the employer's financial documents showing ability to pay the offered salary and meet all other terms of the sponsorship.
The last step of the permanent residency process involves the filing of applications to adjust status to permanent residents for the principal applicant and all of his or her dependents. Dependents refer to spouses and children under the age of 21. Due to visa retrogression, permanent residency applicants from countries with high immigrant visa demand (i.e. India, China, etc.) may be subject to long delays before they can finally complete this last step and receive their U.S. permanent residence.5. Immigration Costs
There are specific rules governing who can cover the fees involved in visa sponsorship. Depending on the type of visa and sponsoring employer, the FNE may not be able to cover the immigration costs of his or her nonimmigrant or immigrant visa petition. For instance, sponsoring employers are required by law to pay all costs related to the PERM petition. The employee cannot cover these fees and any violation of this regulation could result in costly fines for the sponsoring employer by DOL.
It is always good practice to consult with your immigration counsel or in-house attorney/specialist before taking any measures in regard to payment of fees.
Undertaking the permanent residency process on behalf of a FNE represents a huge financial investment for the sponsoring employer - generally several thousand dollars; therefore, it is good practice to put in place mechanisms to request reimbursement from the FNE in the event there is an early voluntary separation. An acceptable form to achieve this would be to require the FNE to sign a Legal Fee Reimbursement Agreement before the employer starts the permanent residency process. A Legal Fee Reimbursement Agreement could include specific enforcement clauses (i.e., the FNE will pay back certain percentage of the legal and filing fees if he or she decides to leave the company voluntarily within certain time of the filing of his greencard process).
It is also good practice to set a specific timeline for the company to consider immigrant visa sponsorship on behalf of a FNE (i.e., exploring the possibility of starting the permanent residency process after the individual has been employed by the company for at least 1 full year, or after the FNE has completed at least two performance reviews).6. I-9 Compliance
One of the main responsibilities of HR is to be diligent in their maintenance of I-9 compliance. HR personnel should familiarize themselves with USCIS' recently released version of The Handbook for Employers (Rev. 01/05/2011), which represents new guidance for employers and HR personnel on how to properly complete Form I-9 - Employment Eligibility Verification form. This form is used by employers to verify an employee's work authorization whether the employee is a U.S. Citizen or a FNE. Noncompliance with I-9 regulations could result in costly civil fines and criminal penalties and even debarment from government contractors for employers and/or HR personnel completing the I-9s. Since the government has been increasingly conducting I-9 investigations in recent years, proper documentation and training of HR personnel has become top priority.
Failure to complete or retain the form correctly can result in fines of $110 to $1,100 for each mistake or omission. Furthermore, employers can face penalties of $275 to $11,000 for knowingly hiring or knowingly continuing to employ an undocumented worker. Employers who show a pattern of hiring unauthorized workers are liable for criminal penalties of as much as $3,000 per employee and may be subject to six months in prison. The government considers different factors when determining the size of fines, like the size of the company, the seriousness of the violations, whether the employer was trying to comply in good faith and the pattern of past violations.
To maintain compliance with the hiring laws, employers may want to consider following the list of best hiring practices endorsed by Immigration and Customs Enforcement (http://www.ice.gov/image/best-practice.htm), which includes enrollment in E-Verify, use of Social Security Number Verification Service, annual audits of I-9 forms, and frequent training of employees who handle I-9 forms for the company.7. Immigration Site Visits
In recent years, the USCIS has implemented "site visits" in its attempt to monitor that U.S. employers are complying with all applicable laws and regulations in the employment of FNEs. A site visit may involve a representative of USCIS or DOL coming to the work location of a FNE and interviewing the FNE, his or her manager, and the HR personnel listed in the petition.
Given that most of the costs for site visits are covered by visa filing fees, the government currently has sufficient funds to increase the frequency of these site visits and have done so in the last years. Make sure you have an action plan in case your company is visited by DOL, USCIS, or any other DHS officers. You could keep a list of key information usually asked such as the company's total number of FNEs, prevailing wage information, wage memorandums, employee acknowledgment letters, mandatory Labor Condition Application (LCA) posting notices, benefits offered, etc.
In an H-1B/LCA related site visit, be ready to provide copies of all related documentation including H-1B filing documents, prevailing wage documents, etc., and expect USCIS officers to inquire about the actual employment location of one or several FNEs, salaries, work areas, work hours, specific duties, if the FNE paid for any H-1B visa costs, if these were deducted from his salary, any previous employment in the U.S., and the FNE's specific education. They may also want to visit with the selected FNE(s) to confirm the information in their records and to take pictures of their work area.
It is critical to keep good records of H-1B's Public Access Files (LCA and prevailing wage documents) which by law are required to be kept either at the employer's principal place of business or at the employment site.8. New USCIS Deemed Export Control Requirements
In recent months, USCIS has made significant changes to the immigration forms used to file certain visa petitions for FNEs, including the widely used Form I-129 for H-1B, L-1 and O nonimmigrant visas. Petitioning employers must now certify compliance with the deemed export laws governing the release of controlled technology to FNEs. For this purpose, the word "Technology" includes specific technical data, as well as training or other technical assistance. An export is "deemed" to take place when controlled technology is made available to FNEs, even if those FNEs are located in the U.S. and even if they are employed by U.S. companies.
Both individuals and companies that fail to comply with export control laws can be subject to severe civil and criminal penalties. With USCIS gathering additional data on behalf of other agencies of the federal government such as the Departments of Commerce and State, employers should expect greater oversight of their export control programs.
Currently, all new H-1B, L-1, or O-1 Visa Petitions require employers to confirm if an export control license is required, in order to transfer information to a FNE. Given the current environment, it is wise to designate an employee to handle this specific type of issues. Your immigration attorney should also be able to provide further assistance and guidance in this regard._____________
HR professionals should always contact their Immigration counsels, in-house attorneys, or Immigration specialists if in doubt as to how to proceed in a particular Immigration case.
Pablo G. Arosemena is an Immigration & Visa Specialist with KBR, Inc. in Houston, Texas. He coordinates all NIV and IV filings for the company and provides guidance to management, domestic and international HR, and employees on U.S. Immigration and outbound matters. Pablo also possesses experience in International mobilization and has completed training in assignment management, tax equalization, ADR, FCPA, Immigration, and export control compliance. He received an LL.B. in Law and Political Sciences from USMA University Panama and an LL.M. from the University of Houston Law Center.
Megan A. Long is an attorney with KBR, Inc., a Fortune 500 global engineering, construction and services company supporting the energy, petrochemicals, government services and civil infrastructure sectors. Her practice includes issues surrounding the intersection of employment and immigration law, as well as overseeing employment-based nonimmigrant and immigrant petitions, and worksite enforcement issues, such as I-9 and E-Verify compliance, LCA audits, and immigration implications of corporate changes. Megan earned her Bachelor's degree from LSU and her J.D. from Gonzaga University. She holds an LL.M. in International Law from the University of Houston Law Center.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.