Developing Effective Corporate Immigration Policy

Every company’s hiring objective is to find the best-qualified candidate, and in today’s global economy, often that candidate will be a foreign national who requires visa sponsorship. And employing a foreign national, even temporarily, requires a commitment of your company’s Human Resources department, administrative time and financial resources. For this reason every employer, whether it hires one foreign national or hundreds per year, should have an in-house corporate immigration policy.

A flexible company-wide immigration policy allowing for efficient and cost-effective management of an immigration sponsorship would include the following guideposts:

Timing. The first question is whether to sponsor. To maintain uniformity and retain internal control, it’s important to establish clearly defined benchmarks for when the company will initiate green card sponsorship. On a strategic level, Human Resources department needs to lead a discussion within the organization of how a decision will be made whether or not to sponsor particular workers for immigration benefits.

The costs of the immigrant visa process are substantially greater than a temporary visa sponsorship and the process is longer and more complicated. This in turn puts a greater burden on your Human Resources department, which will have to be heavily involved in some parts of the process. 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 or not.

The policy should make it clear that the company will be in charge of how the sponsorship proceeds and should identify the individuals or positions vested with the authority to manage the sponsorship process. Depending on the employer’s size, the policy should also address who makes the decision (HR or the line management) and who bears the cost within the organization (HR or the hiring department).

Expenses. It no news to anyone that the immigration sponsorship process is expensive. While legal fees for temporary working visas will typically account for the majority of the costs, USCIS filing fees can also be significant. 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.

In the area of H-1B temporary visa sponsorship and PERM – Labor Certification, USCIS and Department of Labor (DOL) rules affect how costs can be shared.  Those legal or filing fees should not be imposed on the foreign national. However as other parts of the immigration process (such as immigration of family members or the adjustment of status process) may be at the employee’s expense, employers may wish to limit their exposure to immigration-related costs by shifting as many as possible onto the employee.

In addition employers may minimize their cost exposure by having employees sign “pay back” agreements, under which the employee undertakes the employer’s expenses in the event the employee leaves employment either during or shortly after the immigration process is completed. While such “pay back” agreements may not cover the costs of the labor certification process, they may cover other processes, including Adjustment of Status.

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.

Immigration lawyers. Both temporary working visa and immigrant visa sponsorship involves the company applying or petitioning for the appropriate visa with USCIS or with the DOL. While the employee is an integral part of the sponsorship process, the paperwork is filed and signed by the employer and focuses on the company and the position for which the employee is being sponsored. As such the employer is legally responsible, under penalty of perjury, for all corporate representations made on the immigration filings. Accordingly, your company must have a high degree of confidence in the quality and competence of the immigration attorney preparing the applications 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. In our experience, small to mid-size employers will typically select one outside counsel but make employees pay all of those expenses that are legally allowed to be paid by the employee. This policy has the advantage of having counsel familiar with the employer’s cases, while reducing exposure to legal fees. Large companies typically work with one outside counsel but cover all immigration related fees and payments.

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 or compliance risk.

Flexibility. 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.

Conclusion Companies that do not have an immigration policy in place are at disadvantage because every case involves reinventing the wheel, and the lack of institutional memory about past policy decisions may lead to perceptions that decisions about immigration sponsorship are not made on an impartial basis by the organization.

On the other hand properly designed immigration policy will assist the company in reaching its goals, and in maintaining a corporate culture which encourages both compliance with immigration law, as well as strategic use of immigration law where it will benefit the company and the foreign national.