Responsibility for managing a company’s immigration issues often falls within a company’s human resources department. These issues are not as intuitive as the employment laws HR professionals implement. This article addresses immigration principles of which HR professionals should be aware as the talent pool becomes increasingly global.
Not all foreign national employees require sponsorship to work for a U.S. employer. For instance, foreign national graduates of U.S. colleges and universities are usually eligible for 12 months of optional practical training (OPT). Students with a science, technology, engineering or math (STEM) degree may be eligible for a 17-month extension of OPT if working for an E-Verify employer. This allows recent graduates to gain experience within their fields of study, and it gives employers the opportunity to determine if there is a business case for investing further in the employee by securing an employer-sponsored visa. When companies employ individuals with OPT or other forms of work authorization that are not sponsored by the company, it is important for the company to track the expiration dates so it can take steps to continue the work authorization.
Many work-authorized visa classifications are employer-specific, job-specific or even location-specific. Therefore, a change to any of these terms of employment can impact maintenance of status. The company may need to amend the petition.
Impact of Layoffs
The H-1B program strictly limits when an H-1B worker can be on an unpaid leave. The program precludes “benching,” which is when the employer puts an H-1B worker on an unpaid leave of absence due to a lack of available work. When a company is contemplating a mandatory reduction in hours or furlough, it will have to take additional steps with regard to H-1B workers, either paying H-1B workers their full compensation despite the reduced workload or amending the H-1B petition to reflect the reduced level of hours.
Impact of Corporate Restructuring
The employer’s corporate structure is material to some employment-sponsored visas. For instance, the L-1 visa requires a qualifying relationship between a company abroad for which the foreign national worked, and the U.S. employer. The E-1 and E-2 visas require that the company through which the visa is obtained share the same nationality as the employee seeking the visa (and only certain nationalities are eligible). When a company is contemplating restructuring, it should consider the impact the restructure may have on the visa status of its employees and analyze whether work authorization for its key employees can be continued post-restructure.
Change of Address Reporting
Foreign national employees in the United States should be reminded by their sponsoring employers that changes of address need to be provided to USCIS. This can be done through an online program. A best practice would be to set in place a mechanism through which this reminder is generated when a foreign national employee alerts HR or the benefits department of a change of address.
When foreign national employees travel internationally, whether for business or personal reasons, they need certain documentation to return to the United States. Foreign national employees other than Canadian citizens need a visa to return to the United States. If HR is aware of the travel, it can help ensure that the foreign national has a valid visa for his or her current status, or is taking steps to secure it before returning from the trip. Upon returning to the United States, a foreign national used to be issued an I-94 card, which noted his or her status and time for which he or she was admitted to the United States. Now, the I-94 information is maintained electronically. A foreign national needs to verify the I-94 information to make certain that the officer did not make an error in the type of status under which he or she was entered into the United States or the period of stay allowed. The information can be accessed online.