Written by Hannah F. Little, Esq., Managing Partner, N.C. Board Certified Immigration Law Specialist.
Developing and retaining an international workforce is essential to be competitive in the global marketplace. With this in mind, employers are too often unpleasantly surprised by visa and compliance issues. The global employer should ensure its workforce is mobile and comprised of the best and the brightest by strategizing to proactively address its immigration needs.
Implement a company-wide policy which asks key questions regarding immigration status of each and every candidate. Employers should confirm that each candidate is legally authorized to work and confirm whether the candidate will ever require sponsorship for an immigration related benefit.
The inquiry doesn’t end there. If a candidate indicates that they require visa sponsorship, the global employer should probe further and ask additional questions about current status, length of time in current status and whether a green card process has ever been initiated.
When recruiting talented candidates who are outside the U.S. and do not possess a work visa, the H-1B visa for professionals should be considered as a last resort due to the limited number available each fiscal year and the extremely high demand. With limited visa options, the global employer should focus its international recruitment efforts on employees who have served the organization internally for at least one year and may qualify for an intracompany transferee work visa. Further inquiry may be on outstanding individuals who may qualify pursuant to the O-1 exceptional/extraordinary visa.
The global employer also should be aware that certain nationalities have additional visa options available to them, including but not limited to, Australia, Canada, Mexico, Chile, and Singapore.
Finally, if the global employer is a foreign-owned company or engages in substantial trade with another country, there may be additional visa options for employees who are citizens of that country (E visas).
Understand the possibilities and limitations of ‘visitor’ status
An individual who enters on a B-1 visitor visa or pursuant to the Visa Waiver Program (also commonly referred to as “ESTA”) is not authorized to work in the United States.
The business visitor may attend meetings, conferences and seminars; negotiate contracts and disputes; observe activities at a related company; or conduct business on behalf of an overseas employer.
The business visitor may not receive wages from an U.S. entity. If a business visitor is traveling to the U.S. frequently or for extended periods of time, a work visa is recommended since this travel pattern typically raises a red flag for immigration officers at the port of entry. This could result in additional scrutiny, denial at the port of entry, or, in the worst-case scenario, an expedited removal.
If a key employee will be needed in the U.S. for any purpose other than a brief visit to attend meetings or other permissible activities, then it is advisable to contact an immigration law advisor before the trip to determine appropriate visa options.
Note that the law does allow for limited circumstances where someone in visitor status may work in the U.S. The most commonly utilized provision is for skilled technicians who enter the U.S. for the purpose of installing or repairing machinery sold by their employer within the last year, where the contract for sale provides for such service.
Plan for the future
Employers should aim to identify key employees who require H-1B sponsorship by November to ensure timely filing of cap-subject petitions. For employees who have already secured the H-1B visa or another type of work visa, the employer should bear in mind that work visas are temporary in nature and some cannot be extended beyond a certain time period. Global employers should ensure they are aware of these deadlines and identify employees they wish to sponsor for permanent resident status as soon as possible.
Be creative: Global employers have the opportunity to create visa options
Global employers may send key employees to work for an affiliate, subsidiary or parent company outside the U.S. for one year in a specialized knowledge, managerial or executive role. This strategy may qualify the employee for an L-1 visa and facilitate the green card process for those who qualify as Multinational Managers.
Be prepared: Act as if Big Brother is watching
Any number of government agencies may appear for a site visit. This includes U.S. Citizenship and Immigration Services (USCIS) and its Fraud Detection and National Security (FDNS) division, Immigration and Customs Enforcement (ICE) and the Department of Labor (DOL).
The smart employer conducts regular internal “audits” of all H-1B and L-1 workers to ensure that their job duties, work sites and salary are consistent with the petition filed with USCIS. The audit should include a review of the Public Access File for each H-1B worker. Furthermore, the global employer should schedule regular internal audits of its I-9 records to ensure they have been filled out properly and are up to date.
Prepare for site visits by USCIS, ICE and the DOL by designating someone from human resources (and at least one other individual at the company) who could be prepared to meet with an investigator should an unannounced visit occur.
In addition to Human Resources, it is also advisable to notify corporate counsel and obtain the name of a specific contact in the event of a visit from a government agency.