Counsel’s Corner: Immigration Policy

Disclaimer: This document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation.

Colt Catlin
TPM Attorney

Introduction

Hiring foreign workers can help employers obtain skills that aren’t readily available in their local market. Employers may sponsor employees under a variety of visa categories, and there are many legal requirements that must be met before, during, and after a foreign worker is hired. A formal policy can help ensure that an employer’s immigration practices are applied consistently across the organization and are in compliance with federal law.

Policy Pointers

Items employers should consider in developing an immigration policy include:

Employment eligibility.

Comment: Immigration policies must clearly state that employers won’t hire workers who don’t have authorization for employment. Immigration policies also should spell out the criteria that hiring managers need to consider when determining whether a foreign worker is eligible to work in the U.S.

Nondiscrimination.

Comment: Immigration policies should advise employees that employers won’t tolerate discrimination against foreign applicants or employees.

Labor market test.

Comment: Immigration policies should specify that employers take all required steps to determine whether qualified workers are available in the local job market before hiring foreign workers.

Workflow for handling visa requests.

Comment: Immigration policies should clearly establish the organizational unit that processes visa requests, as well as the unit that provides visa information to federal immigration authorities as required by law.

Designated point of contact for visa questions.

Comment: Immigration policies should identify the employer’s department that handles questions regarding hiring or employing foreign nationals—typically the Human Resources Department or the office of legal counsel.

Payment of visa fees.

Comment: Employers should specify which visa fees that they pay and which, if any, are employees’ responsibility. Although federal law mandates that certain visa fees be paid by employers, many companies choose to pay the full cost of the visa sponsorship as an added incentive for foreign workers.

Reimbursement stipulations.

Comment: Employers often stipulate whether they reimburse green card filing fees if employees leave their company. For example, employers might require foreign workers to refund 100 percent of their visa application fees if they leave within six months of gaining permanent residency. Typically, the longer a foreign worker remains with an employer, the less likely it is that they are expected to reimburse the employer.

Time frame for green card sponsorship.

Comment: Immigration policies should state whether employers will sponsor employees for green cards and when the process of applying for green cards can begin. Some companies offer immediate green card sponsorship, while others choose to evaluate their employees for up to a year prior to determine whether they want to sponsor the foreign worker.

Permission to travel abroad.

Comment: When foreign workers travel abroad they risk encountering visa delays when trying to enter other countries or returning to the United States. Employers may want their foreign workers to obtain approval beforehand to help avoid any visa problems.

Termination of employment.

Comment: Immigration policies should address the employer’s and employee’s visa responsibilities when the foreign employee resigns or is dismissed.

Sample Immigration Policy

[EMPLOYER’s NAME] complies with all federal immigration laws and regulations and is committed to providing a workplace free from discrimination, including any discrimination based on national origin or citizenship status. This policy addresses [EMPLOYER’s NAME] processes and procedures for the employment of foreign nationals.

Recruiting and Hiring Foreign Nationals

In cases of business need, [EMPLOYER’s NAME] sponsors foreign nationals for nonimmigrant (temporary) or immigrant (permanent) visas. [EMPLOYER’s NAME] employs only U.S. citizens and foreign nationals who are authorized to work in the United States. All employees are asked on their first day of work to provide original documents verifying the right to work in the U.S. and to sign a verification form required by federal law (Form I-9). If the applicant’s right to work in the U.S. can’t be verified within three days of hire, [EMPLOYER’s NAME] must terminate the individual’s employment. For more information, see [EMPLOYER’s NAME] employment eligibility verification policy.

A hiring manager that is considering recruitment of foreign workers must contact [indicate whom to contact for recruiting foreign workers] prior to commencing action. All requests for immigration sponsorship will be handled by [indicate who handles immigration sponsorship].
[Indicate who handles employment eligibility and work authorization] will be responsible for ensuring that an employee is eligible and authorized to work for [EMPLOYER’s NAME]. All offer letters state that the employment agreement is contingent upon the approval of the appropriate nonimmigrant or immigrant classification and the issuance of a visa and admission to the United States (if the candidate is outside the U.S.).

Hiring managers should alert [indicate who handles immigration sponsorship] as early as possible if they are concerned that a candidate many not qualify for a nonimmigrant or immigrant visa classification. [Indicate who handles immigration sponsorship] works with [EMPLOYER’s NAME] immigration services provider to determine whether it is advisable to make an offer to the candidate in light of the potential delays that might be involved.

Any offer of employment to a foreign national under a nonimmigrant program is considered temporary and is subject to the terms and conditions of the specific program’s work authorization. [EMPLOYER’s NAME] pays all costs associated with filing for a nonimmigrant visa, including costs of the dependent family member’s (for example, spouse and unmarried children under the age of 21) nonimmigrant applications.

Holders of nonimmigrant visas can be appointed only for the time period permitted under the individual’s visa. [EMPLOYER’s NAME] sponsorship of a foreign national for a temporary visa doesn’t obligate or guarantee that [EMPLOYER’s NAME] will sponsor the foreign national for lawful permanent residency (“Green Card”).

[EMPLOYER’s NAME] can nominate foreign nationals from overseas for permanent residence where they have been employed in a full-time position at [EMPLOYER’s NAME] for a period of at least six months. As part of the application process for a permanent visa, [EMPLOYER’s NAME] must be able to show that it has conducted certain recruitment activities to test the local labor market for qualified and available U.S. workers. The recruitment activities must entail:

  • posting an internal job opening for at least ten consecutive business days at the job location, including the salary being offered for the position;
  • placing a job order with the State Workforce Agency for a 30-day period;
  • placing an advertisement in a newspaper of general circulation on two different Sundays; and
  • posting the job advertisement in three additional ways, such as a job fair, on-campus recruiting, or [EMPLOYER’s NAME] website.

During the recruitment period, EMPLOYER must have interviewed any U.S. applicants who satisfied the job requirements being advertised. The recruitment period must have taken place no more than 180 days before, but no fewer than 30 days prior to filing the application.

Visa Fees

EMPLOYER covers all fees associated with filing for an immigrant visa, including the costs of the dependent family member’s (for example, spouse and unmarried children under the age of 21) immigrant applications. However, employees on immigrant visas must reimburse [EMPLOYER’s NAME] per the following schedule:

  • Employees who terminate their employment within six months of receiving permanent residency must refund [EMPLOYER’s NAME] the full cost of visa application.
  • Employees who terminate their employment within 12 months of receiving permanent residency must refund EMPLOYER 75 percent of the cost of the visa application.
  • Employees who terminate their employment within 12 to 18 months of receiving permanent residency must refund EMPLOYER 50 percent of the cost of the visa application.
  • Employees who terminate their employment within 18 to 22 months of receiving permanent residency must refund EMPLOYER 25 percent of the cost of the visa application.
  • Employees who terminate their employment within 24 months of receiving permanent residency must refund [EMPLOYER’s NAME] 10 percent of the cost of the visa application.

Overseas Travel

Foreign nationals who have obtained immigration sponsorship from [EMPLOYER’s NAME] must gain approval from the [indicate who handles immigration sponsorship] prior to arranging to travel overseas while employed by [EMPLOYER’s NAME].

Expiration of Visas

Employees can’t work beyond the expiration date of their visa and can’t be paid thereafter

Nondiscrimination

Nothing in this policy should be used as the basis for discrimination against any individual or group because of race, sex, age, color, religion, national origin, disability, or veteran status. Employees should immediately contact [indicate who handles EEO complaints] about any violations of [EMPLOYER’s NAME] policies or any applicable law relating to discrimination prohibitions. [EMPLOYER’s NAME] responds to and handles all discrimination complaints according to [EMPLOYER’s NAME] EEO policy. For more information, see [EMPLOYER’s NAME] EEO policy.

Violations of Employer’s Immigration Policy

Employees who violate [EMPLOYER’s NAME] immigration policy are subject to discipline, up to termination, according to [EMPLOYER’s NAME] discipline policy. Such employee violations also can constitute violations of other relevant [EMPLOYER’s NAME] policies.

Training

[EMPLOYER’s NAME] requires all new employees to undergo training on complying with EMPLOYER’s immigration policy. Thereafter, employees receive annual training on the policy.