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  • Emily McIntosh

Consider creating a Company Policy on Immigration

Updated: Jun 11, 2021

Your foreign national employees have different needs than domestic employees. Therefore, creating an experience tailored to their needs is a strategy that you can use to your advantage to hire and retain the best global talent. Think of your company’s immigration strategy and policy as a tool to attract the best talent and stay competitive in the market.

As your company grows, so does the need for you to attract and retain talent. With the world becoming ever more connected, there is an accelerated shift to an environment where we all are comfortable with our team members working remotely. Global recruitment has become the new norm and employee mobility is the new normal. A formalized immigration policy allows all the stakeholders (HR manager, hiring managers and recruiters) to be on the same page and keeps the foreign national employees informed about what to expect during their tenure with the company.

Here are the things to consider when setting up your company’s immigration policy:

What are the visa options?

To manage your workforce well, you need to have some understanding of what visa options are available to you and your employees and how to use them. Here are the kind of visas that you could use and list in your immigration policy -

Temporary Work Travel to the U.S.

If you want your employees to travel to the U.S. to participate in business activities of commercial or professional nature then the B-1 visa can be utilized. This visa is awarded anywhere from a few months up to 10 years and a single stay can be of 6 months. Citizens of certain countries can get a B-1 visa waiver. Your employee can apply for the B-1 visa themselves at their home country’s U.S. Embassy or Consulate. They will have to prove that they have the funds to travel to the U.S., stay for the duration of travel and travel back to their home country. The U.S. embassy also looks to make sure the individual applying for the visa has strong ties to his/her home country and are not a flight risk.

Hiring talent in the U.S.

Continuous employment (citizens of Mexico & Canada) - These visas are for the North American Free Trade Agreement (NAFTA) professionals who are citizens of Canada or Mexico. The employer does not need to file for this visa category and the employee can either get it at the Canada-U.S. border or at the Mexican embassy. This visa is valid for three years and can be renewed for a period of three years indefinitely.

Continuous employment (citizens of Chile & Singapore) - If your employees are citizens of Chile or Singapore then you can apply for the H-1B1 visa on their behalf. This visa category has a special allotment of visas and therefore can be applied for (and awarded) anytime in the year. This visa is awarded for one year and the employee can get unlimited one-year extensions.

Continuous employment (citizens of the rest of the world) - If you are looking to hire talent in the U.S. (from any country) then you can take advantage of the H-1B or H-1B1 visas. These visas are reserved for individuals working in a specialty occupation that require a specific skill set. Since this category is very popular with employers, USCIS (the agency that oversees U.S. immigration) runs a lottery every year (in March) to pick 85,000 applicants at random to award the visa. This visa is awarded for three years and the employee gets one extension of 3 more years.

Seasonal Employment (South Africa, Canada, Brazil & Mexico) - If your employee is a citizen of South Africa, Canada, Brazil and Mexico you can apply for the H-2B visa that will allow employment in non-agricultural US companies. Note - these visas are for work assignments that are seasonal or one-time occurrence in a year.

Moving Management to the U.S.

Short-term employment (citizens of Egypt, Belgium, Colombia etc.) – If you want to move investors, executives, managers, supervisors or essential employees who are citizens of the treaty countries then you can use the E-2 visas for them to stay in the U.S. temporarily to conduct business.

Continuous employment (citizens of Australia) – The E-3 visas are only open to citizens of Australia who can prove that they are coming to the U.S. solely to perform services in a specialty occupation that requires specific knowledge and at least a bachelor's degree in the field.

Continuous employment for Manager (rest of the world) – The L-1A visas are for intra-company transfers from a non-U.S. entity to a U.S. entity of the same company. This category is for managers and executives who have been employed by the non-US entity for at least one year. The employees in this visa category can get a three-year visa and two extensions of four years each.

Moving Talented Specialists to the U.S.

Continuous employment for specialist workers (rest of the world) – The L-1B visas are for intra-company transfers from a non-U.S. entity to a U.S. entity of the same company. This category is for employees with specialized knowledge who have been employed by the non-US entity for at least one year. The employees in this visa category can get a three-year visa and a single extension of two more years.

Continuous employment for extraordinary individuals (rest of the world) – The O-1 visas are for foreign nationals employed in the fields of sciences, education, business and athletics who display an extraordinary ability or achievement. Also, included are individuals who have an extraordinary ability in the arts or extraordinary achievement in the motion picture or television industry. The employees in this visa category can get a three-year visa and an unlimited extension of a year each.

Keeping the foreign national employee in the U.S.

The Green Card allows your foreign national employee to permanently stay in the U.S. without requiring to file any more visas. Since this is a multi-year process, it’s advisable to start as early as the company’s management feels comfortable.

Once you decide on sponsoring green card, your employees will fall into one of three employment-based green card categories:

Executives or employees with a PhD - The EB-1 (Priority Workers) category is for employees with extraordinary abilities in the fields of science, art, education, business or athletics. Individuals in academia (professors/researchers) and managers and executives of multinational companies can also apply under this category.

Experienced employees with an advanced degree - The EB-2 (Advanced Workers) category is for employees with exceptional abilities in sciences, arts or business, or for individuals who have at least a master’s degree plus five years of post-bachelor’s work experience.

Inexperienced employees with a bachelor’s degree – The EB-3 (Skilled or Other Workers) category is for foreign nationals with a bachelor’s degree or a foreign equivalent education. This category does not require any previous experience.

How to skip the PERM? – PERM is the first step in the Green Card process where the employer needs to get a prevailing wage (learn how to calculate prevailing wage) confirmation from the Department of Labor and advertise the position that the foreign national employee has to prove that the role cannot be filled by a U.S. citizen. You can skip the PERM process that requires you to advertise the job through the National Interest Waiver (NIW) category. To receive a NIW the employer has to demonstrate that it is in the United States’ interest of the U.S. to waive the requirement of PERM. Individuals who qualify for NIW can also file in the EB-2 category.

When to start the Green Card process?

82% foreign national employees say that a company’s policy on sponsoring Green Cards is one of the top three reasons for them to decide on accepting the job and staying with the company.

Over 70% of companies that rank high on employee satisfaction start their employees’ green card process within the first two years of their employment.

RECOMMENDATION: Start the Green Card Process for your employees within the first year and a half of employment.

It’s important to have a plan for your employees and publish the details so that they know what to expect. It’s good practice to chalk out a clear path for the employees to get to the green card milestone. It’ll save your employees a lot of anxiety and will save you time by having everyone work off of the same process.

Who should pay for the immigration benefits?

To attract the best talent, the majority of employers see immigration benefits as a perk that they offer to their foreign national employees and their dependents. In more than 75% of the cases, the employers pay for the immigration process.

As an employer you can have a policy to expect reimbursement of immigration costs from your foreign national employees through a formal agreement. We suggest working with your immigration counsel to create a reimbursement agreement because the U.S. government mandates some fee be paid by the employers.

You could also stipulate that the employee pays full or partial cost of certain immigration benefits, if they were to leave the company within a certain period of time after receiving the immigration benefit. For example, if the employee were to leave within six months of getting their H-1B or Green Card status then they would be responsible for the full cost apart from the government fee.


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