Hiring, payroll, health insurance and 401k administration, employee satisfaction, training, I-9 compliance, workers comp, state and federal regulations to follow—human resources personnel must be able to juggle a variety of functions. And on top of all these, HR is also usually tasked with acting as liaison and point-of-contact between foreign national employees and immigration counsel. For HR staff who don't have prior experience in immigration, it can all seem overwhelming and daunting, especially all those acronyms!
While immigration is a vast subject and it can take many years to obtain advanced knowledge of all the intricacies of immigration law, if HR personnel can get a grasp on these key topics below, they’re way ahead of the game. To help busy HR personnel with their communication with lawyers and to highlight some of the key issues that may come up in the immigration context, we present a conversation between Joseph, the HR manager here at the firm (and blog editor), and Protima, the managing partner.
The Conversation
JOSEPH: Welcome to this discussion. It’s so great to talk with you.
PROTIMA: I am so thrilled to be speaking with you.
JOSEPH: I feel the same way. I know we talk to each other every day in the office but still to be sitting in your office talking to you is always exciting.
PROTIMA: I can’t even express how excited I am.
JOSEPH: Can you try?
PROTIMA: I am so excited, I am actually speechless.
JOSEPH: Wow. Let’s hope it’s a good conversation…So where should we start?
PROTIMA: Well, I think first I should point out that this conversation won’t cover absolutely everything about HR and immigration.
JOSEPH: It won’t?
PROTIMA: No, it won’t. That would be way too long.
JOSEPH: I would need to skip lunch probably.
PROTIMA: That’s the last thing we want. I know how your blood sugar drops when you don’t eat.
JOSEPH: True, I get cranky.
PROTIMA: So instead of covering absolutely everything—which would be impossible—we’re going to discuss some important points. It’s going to be an introduction to what—in our experience—are the most common issues that HR personnel face in dealing with immigration.
JOSEPH: Will you be covering I-9s? I know that’s a hot topic for HR managers.
PROTIMA: Ah yes, the I-9. As I’m sure you are well aware, the Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment, and all US employers must ensure proper completion of the Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens. But we’re going to save a more in-depth discussion on I-9s to a separate post. For now I’m going to assume you, Mr. HR, have all your I-9s filled out and filed away.
JOSEPH: Yep, they’re all filed away nicely.
PROTIMA: Good to hear. And one more thing. I wrote a post on ways for foreign nationals to be proactive and reduce stressful immigration situations, and this post is also worthwhile for HR managers to read.
JOSEPH: I liked that post.
PROTIMA: Are you just saying that?
JOSEPH: No, I really did.
H-1B Cap
JOSEPH: I thought we’d start with the H-1B cap, which people talk about all year but especially in March and April. This is a big one, right?
PROTIMA: Yes, Joseph, you're right. I’m glad you are paying attention to things happening in this law firm.
The H-1B is one of the most common and most popular visa categories so no matter the company size, there’s a good chance that HR will see an H-1B one day.
JOSEPH: What exactly is the H-1B?
PROTIMA: Another good question.
JOSEPH: Thank you, I think so too.
PROTIMA: The H-1B is a nonimmigrant visa for workers who will be employed temporarily in a “specialty occupation,” or as a fashion model of distinguished merit and ability. A specialty occupation is defined as one that requires a bachelor’s degree, or the equivalent experience, in order to perform the duties of the position offered.
JOSEPH: So architects, graphic designers, accountants, lawyers, engineers, and computer programmers would fall under that?
PROTIMA: Yes, exactly, those would most likely fall under an H-1B.
JOSEPH: And what is the “cap” that everybody always bemoans?
PROTIMA: Under the current law, there is an annual limit of 65,000 new H-1Bs. This is referred to as the “H-1B Cap.” There are an additional 20,000 visas available for current or prospective employees who possess an advanced degree earned at a US educational institution. This is referred to as the “Master’s Cap.”
New H-1Bs become available on October 1, the first day of the government’s fiscal year, but—and here is the kicker—US Immigration & Citizenship Services, which is also referred to by its initials, USCIS, or as just “Immigration,” will only start accepting petitions for a new H-1B on April 1, six months prior to the beginning of their new fiscal year. Typically on April 1, USCIS receives about double the number of petitions for which they have visas. So once all the cases are counted and labeled, a lottery is conducted.
JOSEPH: A lottery! How can an employer rely on a lottery for their hiring?
PROTIMA: I know. It’s not great. But maybe we can consider other visa options?
JOSEPH: Probably, but another question first. If you file on April 1, when should HR start thinking about preparing these cases with immigration counsel?
PROTIMA: To make sure that H-1B petitions are ready to file on April 1 requires often substantial preparation. It can take many weeks (sometimes more) to properly prepare an H-1B filing and get all the documentation signed and ready. So it's strongly recommended in February to begin to identify all the employees who will need an H-1B, contact immigration counsel, and begin gathering all the necessary documentation.
JOSEPH: February? That early?
PROTIMA: Absolutely. Starting in February should give HR and the lawyer plenty of time to gather all the documentation and start preparing the case.
JOSEPH: And the foreign national can start working if they are picked in the lottery?
PROTIMA: If the case is picked in the lottery, it means that Immigration will review the petition and either approve or deny it based on the merits of the case. So if the case is picked, we have to wait for Immigration to adjudicate the case. Once the case is approved, the foreign national may only start working on October 1 (or after if it is not approved until after October 1).
JOSEPH: That’s just crazy! We have to make a decision to hire someone in February and then wait nine months for them to even start? Who does that?
PROTIMA: It’s a terrible system, I agree. But most of the time the foreign national will have another visa status like F-1 (OPT) so they may be able to work while they are waiting for a decision on the lottery and the visa.
JOSEPH: Even so, the employer could potentially train someone for all those months and then they might not be picked in the lottery? That's terrible. But before I get all riled up, what about H-1B extensions, are these subject to the cap?
PROTIMA: No, those who are currently in the US under H-1B status are not subject to the cap. If the company is hiring a job applicant with current H-1B status, the company will need to file a “change-of-employer” petition, and the applicant is eligible to begin work when USCIS receives that petition.
JOSEPH: Excellent. You sure know a lot about these topics.
PROTIMA: Yes, I am an immigration attorney with many years of experience. And I sit about twenty feet from you. We really should talk more.
JOSEPH: Yes, we should! How about we move onto the next topic?
Employee Termination
JOSEPH: Terminating an employee is not the most enjoyable part of HR, I have to admit, but, of course, it has to be done sometimes. What are the immigration issues that HR should be aware of when terminating an employee who is in the US under visa status?
PROTIMA: Another great question.
JOSEPH: Thank you. I’ve been thinking about these for a while.
PROTIMA: Perhaps you can show that kind of initiative in your other work duties.
JOSEPH: I will take that into consideration.
PROTIMA: So, along with the usual exit checklist, HR personnel should do a few things. The first is to tell their immigration attorney if the company is planning on terminating an employee—or just if they are leaving voluntarily—as it’s best to plan for the termination or foreign national’s departure. For example, under most visa categories, the company needs to pay the cost of the plane ticket home and also the company may need to file a withdrawal of the visa petition with USCIS.
JOSEPH: I see. Yes. Planning ahead. I am learning how important that can be. In that vein, from experience, I know that when a foreign national employee leaves, HR sometimes get a lot of questions about their immigration status, such as, “How much time do I have before I need to leave the US?”
PROTIMA: The foreign national understandably has a lot of questions, and we recommend that you direct these to the attorney. Generally, while USCIS does not specify a timeframe, terminated employees with visa status must leave the US in a “reasonable amount” of time after the last day of work. Some people say a month, some people say ten days but the reality is that there is no set period of time written in the regulations.
Of course, Immigration realizes that people will need time to settle their affairs so foreign nationals can change into a visitor status for the time it takes to make arrangements to leave. With these types of questions, since there is not exactly a set answer, it’s always best to defer to the attorney, since there are serious consequences to people’s immigration status if they stay too long.
JOSEPH: What about when the company is giving the employee severance, does that affect whether they need to leave the US in a “reasonable” timeframe?
PROTIMA: Once a company terminates the employee, the employee must leave the US in a reasonable timeframe, even if they are receiving compensation or severance pay. In other words, the fact that terminated employees receive severance pay for a number of months does not “extend” their immigration status or their ability to remain in the US. If the company has flagged these issues to immigration counsel a plan can be made to ensure the smoothest departure of the foreign national.
JOSEPH: What I’m getting from what you’re saying, it’s usually always a good idea to ask immigration counsel when a foreign national has a question about their immigration status/visa?
PROTIMA: You can’t go wrong with asking immigration counsel. Even if counsel seems busy, it’s essential that these important questions are taken care of by a qualified attorney.
Foreign Nationals Changing Job Titles, Moving Work Locations, or Changing Employers
JOSEPH: I know from what you said that a huge part of HR’s responsibility is to flag potential issues that employees with visa status may face so that they can consult with immigration counsel.
One example I know of when HR should talk to immigration counsel is when an employee with visa status either gets promoted or demoted.
PROTIMA: Correct, either of those situations can affect the visa petition, so it’s important to discuss with immigration counsel. And also when the employee moves work locations.
JOSEPH: Even when they’re still employed by the same company, it’s still important?
PROTIMA: A big yes. The reason is because when companies file visa petitions on behalf of employees—or future employees—the company is attesting in the petition that the worker will be employed by the company in that particular job position at a certain salary and at a certain location, or multiple locations, as sometimes happens.
JOSEPH: What if, for example, the individual holds H-1B status and will be working for the same company but is being transferred to the other side of the country, and this new location wasn’t specified as a worksite on the petition?
PROTIMA: In that case, an amended H-1B petition will very likely need to be filed with USCIS. It’s also important to note that the consequences for not filing an amended petition may be serious. Flag the issue when it comes up and speak with immigration counsel as soon as possible so that the employee maintains valid status.
JOSEPH: What about when an employee is demoted?
PROTIMA: This can be serious as well. If they are on H-1B status, the petition was filed attesting they would be paid a certain prevailing wage based on the geographic area of the company. If the company is going to pay the person less than this specified prevailing wage, there could potentially be legal issues. Which is why it’s important to consult with counsel. Don’t be afraid to ask questions!
Employees with Immigration Status Traveling Internationally
JOSEPH: Okay, I’ve got a scenario for you that I know is common for many HR personnel. Say an employee with immigration status comes to HR and tells them that they will be traveling out of the country. HR looks at a copy of their I-797 approval notice and I-94 and sees that it’s still valid for another two years. The foreign national asks if there will be any issues with their international travel. Everything seems fine and the paperwork seems in order. How should HR respond in these types of situations?
PROTIMA: Whenever an employee asks if there will be any “issues” you must tread carefully! This kind of situation can be confusing, since there are multiple factors to examine when a foreign national travels internationally. Say you look at their valid I-797 approval notice and attached I-94, which gives them valid status in the US, and all seems in order. Even so, at the risk of sounding like a broken record, we recommend that you consult the company’s immigration attorney.
Each individual is unique and their situation is unique and the attorney who handled their case is going to be in the best position to give advice on international travel issues, which can sometimes be complicated depending on the foreign national’s background and immigration history. The last thing you want is for that person to be stuck outside the US for an extended period of time.
JOSEPH: You’re right, that would not be good.
PROTIMA: Yes, definitely not good.
JOSEPH: Indeed.
PROTIMA. More on that point, as a general rule, for foreign nationals to travel outside the country and return to the US, with very few exceptions they must have a valid visa stamp in their passport. So the next step would be to ensure they had this stamp, or planned to obtain this stamp at a US Consulate or Embassy abroad—which is its own process that the attorney can provide further instructions on.
Or, say the individual in question is on an O-1 and is applying for a Green Card and has filed an I-485. All the sudden they need to go to Paris for a meeting. It’s absolutely urgent! Can they just go and return under the visa waiver program?
JOSEPH: Yes? Hmm, No! I’m not sure.
PROTIMA: No! In this example, that would not be recommended for many reasons but mostly since they cannot work on a visa waiver. If they were to travel without obtaining permission in the form of an advance parole document, they would be considered to have abandoned their I-485 adjustment application, which could consequently be denied—not something you want to have happen. Applicants may be able to obtain emergency advance parole documents for travel, and an experienced immigration attorney would be able to assist in this matter.
JOSEPH: Anything else for HR to know?
PROTIMA: It’s super important for foreign nationals to check their passport expiration before traveling. If the passport expires before the I-797 approval notice, when they enter the officer will only stamp the passport until the expiration of the passport. If this happens, the immigration attorney should be informed. To avoid that happening, it’s always best to renew the passport early to maximize the time given upon entry.
JOSEPH: Good to know!
L-1 and H-1B Sites Visits
JOSEPH: Recently I’ve been hearing about USCIS and their third-party contractors making site visits to company locations. Will you talk about this please?
PROTIMA: It’s true. You really are on your game today.
You’re right. USCIS has increasingly stepped up their anti-fraud efforts in regards to H-1B and L-1 site visits. So HR personnel should thus be aware that USCIS-contracted investigators may visit company locations to ensure that the H-1B or L-1 worker is employed in the position and work location specified in the petition that was submitted and approved.
JOSEPH: What should I do to prepare for these visits? Also, do they let you know they are coming?
PROTIMA: They are usually unannounced. But here’s how HR personnel should prepare. Thoroughly review—along with the foreign national—the petition submitted to USCIS and be familiar with the information contained in the petition, as this is the information the investigator will have.
Make sure that front office personnel are prepared for a potential visit from an investigator. Make sure they know the protocol to contact the H-1B or L-1 petition signatory or company representative. They should also be instructed not to give out the company information and instead let the company representative handle that.
JOSEPH: Okay, what else?
PROTIMA: Keep copies of all H-1B and L-1 petitions and paperwork filed (as well as any amendments to the petition) for easy access in the case of a site visit.
And, as mentioned before—this is especially important for site visits—notify the company’s immigration attorney of significant changes to company information, including change of location, as well as any changes to terms of employment for H-1B or L-1 workers—including termination of employment or transfer back abroad—to ensure if necessary the petition is amended with USCIS as appropriate.
JOSEPH: Okay, I think I got that all.
PROTIMA: Lastly, it’s important to not guess at answers to the investigator’s questions. If the employer doesn’t know, they should request that they get back to the officer with the accurate information.
“How Soon Can This Applicant Start to Work For Our Company?”
JOSEPH: As you know, hiring is a huge part of HR’s responsibilities. And many times the hiring process has to happen quickly, or we need a proper timeline so that the manager or department can prepare properly. So can you give any general guidance to the often-asked question: “How soon can this applicant work for our company?”
PROTIMA: This is one of the most common questions we typically receive from HR. And it’s completely understandable. The short answer is: it depends.
JOSEPH: On what?
PROTIMA: Glad you asked, it brings me to the long answer. The issue for immigration counsel is that there are so many variables and unknowns—combined with the fact that USCIS is often a bureaucratic and unpredictable organization—that it can be a difficult question to answer. The first step for HR personnel to get this estimate is to gather copies of all the foreign national’s immigration documentation and passport as well as a detailed resume/CV and also have all the information on the prospective job and salary. Sometimes more information might be needed.
JOSEPH: So you can’t provide any general guidance so I can determine that answer?
PROTIMA: I really wish I could. It would make our job easier too! Three to four weeks is a guesstimate best case scenario while three months is realistic for most visa types. Unfortunately, each person’s immigration status and situation are absolutely unique and there are so, so many variables that it’s impossible to say on a general basis. To answer that question we need at the minimum the resume or CV, job title and description, salary, copies the individual’s immigration documentation showing status, their visa, and passport page. With that info immigration counsel can often give a rough estimate, though sometimes more information is needed.
JOSEPH: What about when an employee changes employers, how soon can they start to work?
PROTIMA: It varies from individual to individual, but generally, if the person is in the US in valid H-1B status, then the individual would likely be able to start upon the H-1B change-of-employer petition being filed with USCIS. If the individual is in the US as an O-1, then the petition would have to be approved for the person to begin work with the new employer.
JOSEPH: Okay, I think I got it. We've covered a lot of information. I will have to ponder it all over lunch. I think I’ll have some carne asada tacos!
PROTIMA: Hey, can I get one too?
Extension Filed but the Person's Status Is Expiring
JOSEPH: Before we break for lunch, let’s discuss this last topic.
As you know, HR can face a lot of issues, and here's one that I’ve seen a number of times. What happens when the extension petition has been filed and has been pending for months and the foreign national's status is expiring?
PROTIMA: This can be nerve-wracking for those not familiar with these types of situations. If an extension of status petition was filed prior to the I-94 status expiration, the foreign national will not accrue “unlawful presence” for purposes of inadmissibility. In other words, the foreign national is legally permitted to remain in the country to live and work until 240 days have passed since the expiration of the I-94 card or if the application is denied. Again, always check with the immigration attorney who filed the case to ensure there are no issues, but this is helpful background information that HR personnel should know.
JOSEPH: Whew, okay. Good to know.
PROTIMA: The world of immigration law is often complicated and confusing.
JOSEPH: Yes, and HR personnel are often tasked with jumping head-on into this world.
PROTIMA: It’s true, but you got this! And with a little practice, you’ll be using all those acronyms like a pro!
JOSEPH: Any more parting words of wisdom?
PROTIMA: For you personally? Or for HR managers?
JOSEPH: Both.
PROTIMA: I would just say that the most important thing is to ask questions of immigration counsel. Ask questions for anything you don’t understand, because it is complicated. And it’s the attorney’s job to help.
JOSEPH: Thanks, Protima!
PROTIMA: Thanks, Joseph!
JOSEPH: It’s taco time!