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

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

3. 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

4. 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”

5. 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.

6. 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)?”

7. 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)”

8. 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

9. 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

10. 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

11. 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.

12. 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

13. 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

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

15. 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

16. 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