Why Every Employer Needs an Immigration Policy
Many employers find their business needs are well-served by attracting and retaining top-tier international talent. However, without a strategic immigration policy, some employers may be risking or sacrificing time, money and employee capital to achieve their employment objectives.
The risks of not having an immigration policy range from fines, loss of hired talent and loss of goodwill to regulatory violations or even criminal prosecution or civil consequences. A good policy that creates a consistent set of processes and internal governance can limit the company’s exposure to these types of issues. Moreover, having an immigration policy is important for employee retention and attracting talent, as many sought-after foreign national workers may be weighing immigration sponsorship offers from other employers. Accordingly, an employer’s immigration policy has a direct and sizeable impact on employee recruitment and retention.
An effective immigration policy must address all stages of a full employment lifecycle, including hiring/onboarding, employment and separation.
Any employer’s immigration policy should address, at minimum, the company’s willingness to sponsor foreign workers as well as recruitment and interviewing parameters for foreign workers. This includes questions employers are and are not allowed to ask foreign workers regarding their status or need for sponsorship, the costs and timelines of different visa sponsorships and other important details in the beginning stages of hiring a new employee.
Additionally, all employer immigration policies should advise on I-9 compliance. This will serve as a guide for the company’s human resources department as they create I-9s for each new hire (not only foreign nationals) and complete the employer verification section of the I-9. The policy should also include guidelines on whether verification documents will be copied, how long documents must be maintained and archiving/recordkeeping details. Failure to initially complete the I-9 (whether by the employee or the employer) as well as failure to maintain adequate documentation can result in punitive actions including significant financial penalties.
Throughout the foreign worker’s tenure at the new company, immigration issues will arise from time to time. These issues can be triggered by promotions or demotions, the dissolution of a company or a merger with a new company and by individual sponsorship deadlines and expiration dates. A strong immigration policy will address each of these, as well as encourage consistent consultation with immigration counsel prior to any changes in the original employment of the foreign national. Failure to do so can result in not only fines to the employer, but potentially the foreign national losing visa status.
Additionally, employers should determine in advance whether they plan to offer permanent residency (“Green Card”) sponsorship in addition to the shorter-term, nonimmigrant visa sponsorship. As both have costs that are solely the responsibility of the employer, a sound immigration policy will detail the different visa categories that may be most common to their hiring pool and the costs associated with each stage of sponsorship.
At any company, employee turnover is a reality. Employers and employees alike should be prepared for the consequences of ending the employment relationship. For some employees, employment termination can result in immediate need to depart the U.S. Additionally, the employer may be required to notify the government that the employment relationship has ended and/or provide the costs for return transportation to the employee’s home country. Failing to consider these issues from the start can result in confusion and complicate the stressful process of employment termination. A well-prepared immigration policy will contemplate these situations well in advance of the time for employee departure.
Key Takeaways on the Importance of an Immigration Policy
Perhaps the most important aspect of having an immigration policy is using it and making sure all members of your company have access to it should there be departmental changes or restructures, or if a current employee simply has a question about the process. Having a transparent and widely accessible immigration policy will create increased employee trust from the beginning and hopefully lead to increased retention, as well as make your company competitive in the sphere of bringing in highly sought-after international talent.
If you have any questions regarding creating or reviewing an immigration policy that fits your company’s unique needs, please contact Manuela Morais or Jeff Zimskind or one of the members of Stevens & Lee’s Immigration and Nationality Department.