HR Guide: I've been made responsible for immigration. Now what?
Updated: Jul 5, 2022
Almost all the people leaders that I have talked to, got immigration added to their repertoire because there was no one else who had the time, capacity and the experience to handle it. This does not mean that you necessarily had the experience to figure out the immigration alphabet soup. Just that you had almost no choice in the matter.
But now that you are responsible to keep immigration running, you not only have to drink from the fire-hose learning all things immigration but also have to make sure that you manage employee expectations.
You spend 500+ hours/year on immigration
Our market research shows that people leaders spend 500 hours/year for every 10 foreign national employees that they manage. Even though immigration makes a line item in your job profile, you spend 30%+ time on immigration.
Why does immigration require so much time?
Immigration tends to be an all consuming thing because -
it requires you to not only deal with tasks that you are responsible for
but depending on your immigration partner, you may also have to push to get the cases done
handle employees' questions, frustrations and anxieties
not to mention the compliance - LCA, PAF, I-9 (re-verification) etc.
How do I prepare myself for the job?
While immigration requires you to work closely with your immigration service provider, there are things that you can do to make sure that you are set up for success.
(1) Understand the basic visa types and statuses
Most of the employment based immigration revolves around these categories of visas. So, it may make sense to understand what each entails -
F-1 (Student Visa) - A foreign national can work with you on CPT, OPT or STEM OPT. You can learn more about these statuses here. You can also read about when foreign national employees can and cannot work for you while they wait for their OPT Cards here.
H-1B (Work Visa) - For a foreign national to work for your company, they need work authorization. This work authorization is approved by USCIS and your immigration counsel will have to file a petition to get the work authorization. You can learn more about the H-1B process here.
Green Card (Permanent Resident Visa) - The work visas are for a limited time. So, if you want to retain the employee beyond their work visa limit, you will have to file for a Green Card for them. You can learn more about the H-1B process here.
(2) Talk to your immigration partner and set up expectations
It is a good idea to meet with your immigration service provider and chalk out the responsibilities of each side to file different kinds of cases. You want to understand -
How do they want you to tell them about new cases?
What details and documents do they need from you to get started on a work visa or a green card?
What timelines can you expect for different kinds of cases?
Who tracks status expirations?
When would they start work visa extensions?
Who writes checks to USCIS for cases? (either employers or attorneys can do it)
How do the employees communicate with them? Do they require the employees to go through you? Or can the employees reach out when they want?
After a case is done, who is responsible for maintaining the Public Access File (PAF)?
(3) Talk to your recruiters
Since your recruiters are the ones who talk to potential employees, you want to make sure that you understand -
What questions do they get from candidates about immigration?
What challenges have they faced in the past when recruiting foreign national employees?
What kind of visas do they typically deal with?
What process have they followed in the past to hire foreign national candidates?
Who is responsible for collecting documents from the candidates?
Who is responsible for immigration history verification of the candidates?
(4) Talk to your foreign national employees
To best understand the state of ongoing immigration operations, you may want to talk to your foreign national employees to understand -
How do they track their cases?
How do they get their questions answered?
Do they track their own status expiration or do they depend on you or the attorney's office to do so?
What has their experience been in the past - the good, the bad and the ugly?
What are the biggest challenges that they have faced? And what would they like changed?
NOTE - foreign national employees are usually on the edge about their immigration cases. So, it is important that you tell them that you are in control and that you'll be leading all immigration efforts to make sure that their cases get filed in time and correctly.
(5) Set up Public Access File (PAF)
The Public Access File is a physical or electronic folder or file that you maintain to keep the records of the immigration benefits filed for your foreign national employees. These are the items to include and maintain in the public access file
Copy of the certified Labor Condition Application (LCA)
Documentation of the wage rate to be paid
Documentation of the resource used to determine Prevailing Wage (PW)
Document(s) demonstrating compliance with union/employee notification requirements
Summary of benefits offered to U.S. workers in the same occupational classifications as H-1B nonimmigrants
(6) Set up a way to track status expirations
As mentioned above, you could depend on your immigration service provider to track the expirations for you. Since the immigration firm tracks multiple data points to determine the expiration status, it makes sense to let them track these dates. But if your immigration partner does not track these details then you may want to set up calendar reminders with these basic alerts -
Follow up with the employee at least 1-2 months before expiration
The employee needs to provide you with updated I-20s if they plan to stay with the company beyond the expiration date.
Follow up with the employee at least 3 months before expiration
The employee needs to apply for STEM OPT and provide you with an updated I-20. Note - they may need your help with the I-983 to apply for STEM OPT.
STEM OPT Expiration
Follow up with the employee at least 3 months before expiration
If the employee does not have an H-1B starting after their STEM OPT expires, then they cannot legally work for you
There is not further extension for this status
Follow up with the employee and your attorney 6-8 months before expiration
USCIS allows employers to file for extension 180 days before the expiration date
(7) Create an immigration policy
An effective immigration policy can be very helpful to set expectations not just with the foreign nationals but also with the management, recruiting team and your immigration service provider. There is an argument to be made on how an effective immigration policy could be your best tool to recruit talent. You can read more about it here.
Special thanks to Shellie Summers (Ivani) for providing valuable feedback
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a WayLit-affiliated attorney or another qualified professional.