In the ever-changing climate of U.S. and international immigration compliance, it is imperative that organizations sponsoring foreign national employees for immigration benefits have reasonable and well thought-out immigration policies.
Aires recognizes the following key elements that must be considered when creating a corporate immigration policy. These safeguards will help ensure the utmost clarity, compliancy, and organizational efficiency toward the sponsorship of foreign national employees.
With that in mind, the below nine areas are starting points for creating or re-assessing a corporate immigration policy. Note that this list is not all-inclusive. Creating or reviewing a corporate immigration policy should be a thorough task that involves many departments within the organization, taking into account company-specific considerations and applying competent immigration counsel.
- Material decisions regarding immigration strategies. Immigration processes can be a stressful exercise for an employee and their family. Often, the employee may be inclined to take the reins and potentially “go rogue” with their own research and actions. It is up to their company to make sure this does not happen. Companies must work with their employees to establish clear instruction on following advice and strategy set forth by the company’s appointed immigration counsel. If an employee acts outside of these guidelines, it could be contradictory to the overall end goals of both the employee and their company.
- Premium Processing/Expediting. In certain instances, premium processing and expediting of immigration applications is available. Sometimes it is a business necessity to choose these routes and pay the extra fees associated with the process. At times, employees request this option, so they can finish out their immigration process sooner rather than later for either personal reasons or peace of mind. Their company should have a clearly defined policy surrounding the agreement to pay for premium processing either in all cases and/or only in the event that there exists a business justification (e.g., the company needs the employee to start quickly, or there is no difference in overall fees).
- Permanent Residence sponsorship. Once a company successfully sponsors an employee temporarily, either the company and/or the employee may desire a more permanent immigration status option if available. Alternatively, the company may not desire such a permanent immigration status for the employee or be uncertain if they are willing to pursue it at that time.
Permanent residence status requires many considerations – costs, time, and company obligations. For this reason, it is imperative that the company spell out the process and decisions for moving forward (or not moving forward) with permanent residence sponsorship from the outset. This typically would occur during a specific period of transition time (6 months – 1 year), which would serve as a trial period for the company and the employee before definitively deciding to move forward (or not) with permanent residency. If exceptions to this policy exist, they should be documented and contain legitimate business justifications.
- Change in Employment/Circumstances. The corporate immigration policy should place the onus on both the employee and responsible internal personnel for reporting important changes in the terms and conditions of a sponsored employee’s job status or employment functions. For example, changes in job location, duties, and salary can have an impact on a company’s obligations from an immigration standpoint. As a result, it is essential that safeguards are installed in the corporate immigration policy to allow pertinent personnel to be made aware of these changes before they happen, so companies can assess any immigration ramifications accordingly.
- On-boarding/Candidate process. One of the most delicate issues for companies when interviewing and hiring employees is to ensure that they are making every decision in line with non-discriminatory practices. Even though a company might have the best interests in mind, they need to be aware of any assumptive questions or statements during this time in the employee life-cycle to avoid potential litigation risks. Because of this, company personnel should be well-trained on questions that can be legally asked during the hiring and on-boarding process. The company should also have consistent and compliant language appearing on job applications.
- Dependents. The company has decided to sponsor a candidate or employee’s immigration application. What about family members? Will their costs be borne by the employee or will the company cover them? Could particular scenarios lead to one decision over the other? These policy considerations should be thought out and documented in advance so that employees have clear expectations and assurance that these decisions are applied consistently.
Additionally, the company should take some time to consider what a dependent is. (e.g., Is there an age that would disqualify a child from dependent status?)
- Spouse/Dependent work authorization. As referenced above, the company can take different approaches to this question depending on historical practices and objectives. That being said, it should be clearly defined whether the company will cover the costs of obtaining work authorization for a spouse/dependent. It can be an uncomfortable situation for an employee to request assistance to obtain work authorization for his or her spouse after arriving in a new country only to find out this is not covered by the company.
- Renewal processes. Obtaining work status for foreign national employees is the vital component to any corporate immigration strategy; however, maintaining that work status after the expiration of the initial authorization is equally as vital. Processes need to be in place with a company’s mobility service provider, internal personnel, and/or immigration counsel to ensure that central databases are collectively reviewed and updated so as to not to allow any workers to fall out of lawful status. The method for accomplishing this objective should be clearly spelled out in the immigration policy.
- Repayment Agreements. The repayment agreement will serve as a standalone document, but its existence and specifics should be outlined in the company’s immigration policy. A company wants to ensure that it is receiving return on investment for the time and money they spend to sponsor a foreign national employee. What if the company were to sponsor an employee for temporary and permanent residence and pay the fees associated with it (potentially totaling up to a decade worth of legal and government fees) only for the employee to then leave the company as soon as the permanent residence is procured? In this instance, the company will want to have some recourse against the employee for fees spent on their behalf. This can be accomplished via an executed repayment agreement that is collected before any immigration processes commence.
Most importantly, it cannot be stated enough that a company is required to be meticulous in broadly applying these corporate immigration policies throughout their employee and candidate population to avoid any potential claims of discrimination or bias. More so, if any exceptions to the policy do exist, there should be a well-documented business justification for them.
There are many considerations for a company to contemplate when crafting or reviewing an immigration policy. Should your organization have questions and/or concerns surrounding the development of corporate immigration policies, please reach out to your Aires’ representative.