Corporate and Institutional Sponsorship Policy Considerations Michele G. Madera Andrew J. Zeltner

Introduction Identifying candidates who need immigration sponsorship without creating legal liability Key areas for immigration policy development Practical steps for policy development

Identifying Candidates Needs Without Creating Legal Liability The Immigrant and Employee Rights Section (IER) of the Department of Justice– Enforces non- discrimination requirements of the Immigration and Nationality Act (INA) Very active in last couple of years

Identifying Candidates Needs Without Creating Legal Liability (cont’d) Citizenship Status Discrimination – Protects U.S. Citizens or Nationals, Permanent Residents, Asylees, Refugees, and 1986 amnesty program’s “Temporary Residents” Does NOT apply to those who “need sponsorship”

IER / Sponsorship / Recruitment Questions Recruiters NOT allowed to ask “Are you a U.S. Citizen?” or “Do you have a Green Card?” NOT allowed to request specific documents or to require “more or different” documents than the minimum required.

IER / Sponsorship / Recruitment Questions (cont’d) Recruiters ARE allowed to ask: “Are you legally authorized to work in the United States?” followed by “Will you now or in the future require sponsorship for an employment visa status (e.g., H-1B visa status)?”

IER / Sponsorship / Recruitment Questions (cont’d) Sponsorship – Employers MAY elect not to hire candidates needing “Immigration Sponsorship.” BUT decision must be based SOLELY on the need for sponsorship (not national origin, retaliation, etc.) Sponsorship Policy considerations—e.g. “Employees will be sponsored where there is a valid business reason (i.e. unavailability of other qualified candidates)”

Immigration Policy Management Immigration As a Strategic HR Issue Deciding When Sponsorship is Appropriate Role of HR and Inclusion of Line Management Setting Policy vs. Ad-hoc Decision Making Financial Concerns Deciding Whom to Cover with the Policy Internal – position, level, location or department-based External – covering contractors and subcontractors

Key Areas for a Policy: Visitors Visitors come on B visas or under the “Visa Waiver Program” Visitors may not perform most productive labor Business visitors (B-1/WB) may come for conferences, business meetings, commercial transactions, to “consult and advise,” and other activities

Key Areas for a Policy: Visitors (cont’d) Visitors for pleasure (B-2/WT) may visit – that’s all! If the employer normally hires a U.S. worker to perform the services, it’s work Source of payment should come from foreign employer

Key Areas for a Policy: Visitors (cont’d) Do NOT use the visitor visa to “jump start” the employment of a foreign national Do NOT use the visitor visa because a work visa simply can’t be had in time Do NOT use the visitor visa if the employee will be managing U.S. projects, U.S. employees or otherwise engaging in “productive employment” in the U.S.

Key Policy Issues for Employment-Based Nonimmigrant Categories Students (F and J) Identifying Students Needing Employer Sponsorship Timing and the H-1B Cap Trainee Programs (J and H-3) Formal Training Programs Requirement to prepare for a career abroad Options for unpaid or informal internships

Key Policy Issues for Employment-Based Nonimmigrant Categories (cont’d) Professional Workers (H-1B) Whether to Sponsor an Employee H-1B Cap Issues LCA Compliance Issues Extraordinary Ability (O-1) Who is “Extraordinary” Comparing O-1 with Other Options

Key Policy Issues for Employment-Based Nonimmigrant Categories (cont’d) Canadian/Mexican Professionals (TN-1) Identifying “self sponsored” TNs Long term planning for TNs

Employment-Based Immigrant Categories Choosing Route To Permanent Residence Extraordinary, Outstanding and National Interest Categories Labor Certification Requirement Managing the Labor Certification Process Policies on Initiating the Permanent Residence Process Assuming the Costs and Payback Agreements

Key Policy Administration Issues Managing Workflow Date Tracking Employee Communication Issues “Managing Expectations” of Managers and Employees Travel Questions Changes in Position or Location Creating a Team with Outside Counsel Third Party Contractors / Liability Concerns