A flexible immigration sponsorship policy serves an employer and its foreign national workers by balancing business-side considerations and individual case strategy and needs. Establishing a clear policy also helps to manage stakeholder expectations and can support employee retention.
Every company's hiring objective is to identify and retain the best-qualified candidates. In our increasingly technology-driven economy, top-tier candidates are often foreign nationals educated in the United States, requiring visa sponsorship as they enter the workforce. Whether your company is a growing start-up with a handful of employees or a long-established firm employing hundreds, it is inevitable in today's market that you will have to navigate the maze of rules and regulations surrounding the employment and sponsorship of foreign national employees.
Hiring and employing a foreign national, even temporarily, requires a commitment of your company's administrative time and financial resources to successfully navigate the complex immigration system, including planning for near-term temporary work authorization and long-term strategy for green card sponsorship. Further, immigration sponsorship can be a powerful incentive and retention tool that may help to draw and retain talent.
Accordingly, efficient and cost-effective management of an immigration sponsorship requires a flexible company policy that accounts for shifts in the legal landscape, fluctuating processing times, economic volatility, and foreign national employee needs and hopes.
In defining an effective immigration sponsorship policy, you should consider the following questions.
The immigration sponsorship process can be costly. Most foreign nationals requiring sponsorship from an employer require both a temporary “nonimmigrant” visa, which provides work authorization and status near-term, and a permanent “immigrant” visa, which provides a basis for permanent residency (Green Card) in the United States. Foreign nationals subject to extensive backlogs for immigrant visas, including those born in India and China, may require multiple renewals of their nonimmigrant visas while awaiting a green card, while foreign nationals from other parts of the world may move more quickly to permanent residency, requiring a shorter overall period of nonimmigrant sponsorship.
Employers are generally responsible for covering the costs associated with sponsorship, with limited exceptions. Having a policy that clearly establishes which party will pay for certain immigration sponsorship costs will help you to remain in compliance with immigration regulations, manage expectations with your employees, and remove the possibility of claims of unequal or unfair treatment.
While some nonimmigrant and immigrant visa processing costs — such as certain fees and expenses related to H-1B and PERM filings — must be paid by the employer under current U.S. Department of Homeland Security (DHS) and U.S. Department of Labor (DOL) regulations, others can be passed on to foreign national employees at the sponsoring employer’s discretion. Although there are no set practices across companies or industries, it is most common for employers to cover the costs of the nonimmigrant visa sponsorship process in their entirety for a foreign national employee and to split certain costs of the immigrant visa sponsorship process with the foreign national employees.
For example, in the nonimmigrant visa context, an employer must pay U.S. Citizenship and Immigration Services (USCIS) filing fees currently totaling $1700-$2500+ for an H-1B petition filed with regular processing, as well as legal fees. Employers also typically cover the costs of USCIS’ premium processing services (currently $2500) where a business need calls for expedited processing. Increasingly, employers are passing other costs on to the sponsored foreign national employee, including requiring them to pay for premium processing in the absence of a business need or requiring that they be responsible for any costs related to visa sponsorship for their dependent family members.
In the immigrant visa context — where costs can easily total $10,000-20,000+ for the PERM, I-140 Immigrant Visa Petition, and Adjustment of Status (Green Card) processes — it is common for employers to split the costs of the Green Card sponsorship process with the employee on some basis. Of these immigrant visa costs, employers are only required to pay the costs related to the PERM process, though most employers commonly cover costs associated with an I-140 Immigrant Visa Petition as well. Many employers require the sponsored foreign national employee to pay the costs associated with the remaining steps of the green card process, including the employee’s own Adjustment of Status (Green Card) application and/or the employee’s dependent family members’ applications. In situations where the employer pays for most or all of the Green Card sponsorship costs, it is also common for the employer to have the right to "claw-back" a limited portion of the costs if the employee leaves his or her employment within a set period after filing.
More specific questions to consider regarding immigration sponsorship costs:
To maintain equity among foreign national employees, support foreign national employee retention, and ensure that foreign national employees do not lose immigration status or work authorization, it is important to establish clearly defined benchmarks for when the company will initiate Green Card sponsorship.
As noted above, the costs associated with immigrant visa processing are substantially greater than temporary nonimmigrant visa sponsorship, and ongoing temporary visa sponsorship is required throughout the immigrant visa process to maintain work authorization and valid status in the United States, adding to total per employee costs. The immigrant visa process is lengthy and complex, requiring significant input from foreign national employees, their managers, and human resources and global mobility staff internally. To ensure that these factors are accounted for, company policy should both establish a benchmark for when the company will consider an immigration sponsorship and confirm that immigrant visa sponsorship, timing, and strategy is ultimately at the company’s discretion. An effective immigration sponsorship policy should make it clear that the company will be in charge of how and when the sponsorship proceeds and should identify the stakeholders with the authority to manage the sponsorship process from the outset.
More specific questions to consider regarding green card sponsorhip:
While it is important to clearly define your company's policy and to set appropriate benchmarks, it is also important to recognize that in practice, immigration sponsorship will require flexibility, and the company will need to make exceptions to the established policies. Immigration sponsorship rarely runs perfectly. There are myriad factors from the business side that influence the decision-making process, such as budget constraints, operational changes, corporate reorganizations, and layoffs. From the legal side, there are the ever-changing immigration laws, procedures, and processing times, as well as major fluctuations in the availability of employment-based immigrant visas that impact the overall sponsorship timeline. Your policy should include language expressly reserving the company's right to make exceptions and can even address some of the circumstances that may warrant exception.
A flexible policy allows for and supports immigration sponsorship strategies that serve the company and a foreign national worker. Consider the following examples.
Practical example: A company has kicked off an employment-based immigrant visa process for a foreign national employee, which is in its early stages when the sponsored employee marries a U.S. citizen. The foreign national employee and their spouse are interested in pursuing a marriage-based green card, but do not want to do so if the company is already offering sponsorship. Instead of pursuing the employment-based process, the company could offer to cover the costs of a marriage-based filing, including a claw-back agreement for sponsorship costs. This shift in strategy could save thousands of dollars and months (or years!) in processing time.
A thoughtful and adaptive sponsorship policy is good for both the company and the sponsored immigrant. Good will, enhanced employee loyalty, lower employee stress, reduced work distraction and increased productivity all flow from it if wisely applied.
Victoria Morte also contributed to this article. If you have questions about immigration sponsorship, please contact Attorney Morte or Attorney Gallini or any member of our immigration team.
by
John J. Gallini
