Avalyn C. Langemeier, Partner

Helene N. Dang, Partner

Developing and Enforcing a Corporate Immigration Policy

• To comply with the law and limit liability exposure.• To make uniform decisions on hiring and immigration sponsorship of

foreign nationals.• To align with overall HR strategy of “talent management” – bringing in

talent and retaining talent.• To maintain consensus between HR, hiring managers, legal and

employees.• To align with business goals, including company brand and reputation.

Reasons for a Corporate Immigration Policy

• Consistent immigration decision-making policy across company.– Whether to sponsor for temporary work visas;– Whether to sponsor for permanent residence (aka green card).

• Facilitates immigration compliance throughout company.• Facilitates employee decisions and satisfaction.• Government data tracking.

Centralization of Immigration Function

• Common Work Visas: H-1B, L-1, TN, E-1/E-2 (ER must pay for some visas)

• Visitor visa is not for work.• Third-Party Vendors.

Temporary Work Visas

• Lack of an employer-employee relationship does not preclude liability for workers lacking work authorization.

• Independent Contractor Agreements – The Walmart Clause.

• Constructive vs. Actual Knowledge.

Immigration Compliance for On-site, Third-Party Vendors

Employment-Based PR Process

3 Step ProcessWho? Skilled Workers/Professionals, Advanced Degree

PERM Labor Certification I-140 Immigrant VisaPetition

I-485 Adjustment ofStatus OR

Consular Processing

ER must pay this cost

2 Step ProcessWho? Extraordinary Ability, Outstanding Researcher, Multinational Manager,

National Interest Waiver

I-140 Immigrant VisaPetition

I-485 Adjustment ofStatus OR

Consular Processing

• Temporary Work Visas

– H-1B: $500 anti-fraud fee and $750/$1,500 ACWIA fee; and perhaps legal and $325 application fees (in some circumstances)

– L-1: $500 anti-fraud fee

– Offer return transportation home where H-1B, O-1 or E-3 worker involuntarily terminated before status expiration date.

• Permanent Residence (PR)

– PERM labor certification (step 1 of 3-step PR process)

What is Employer Required to Pay?

• Consider what your industry is doing. Many foreign nationals see this as a benefit.

• Sample Scenarios:– ER pays all fees.– ER pays only for EE.– ER pays only mandated fees.

• Premium processing and Travel Costs – Most ERs pay if business necessity.

Common Fee Payment Practices

• Mergers, acquisitions, divestitures & joint ventures may involve:– Transfer of status to new employers.– Compliance filings to reflect changes of name, ownership, address,

corporate relationship.– Impact on employees, including possible loss of visa status for some.– Impact on ongoing qualification for permanent residence.– Entirely new applications for work permits for continued work

authorization.

• Layoffs, terminations & furloughs may involve:– Loss of status for employees and their dependent families.– Compliance filings to reflect changes to employment.

Involve Immigration Counsel Early in M&A and Layoff Planning

• Status expiration date tracking protocol;• Communication protocols;• Handling material changes in job or job location;• Public Access Files (H-1B, H-1B1, E-3) – maintenance & retention;• I-9 Files – maintenance & retention; and• Provide training to HR and others.

Other Terms to Include in Policy

Possible FINES for CIS, DOL and OSC VIOLATIONS: • Civil Fines.

• Back pay for Labor Condition Application violations.

• Debarment from H-1B & PERM labor certification programs.

• Hire/rehire (OSC).

Employer Sanctions

• FINES for Form I-9 PAPERWORK VIOLATIONS: – $110 to $1,100 per individual.– Factors considered in assessing fines: Size of Employer; Good Faith (or

Bad Faith) of Employer; Seriousness of Violations; History of Violations; and Unauthorized Workers.

• POSSIBLE CRIMINAL CHARGES:– Knowingly hiring or continuing to employ an unauthorized worker; – Harboring and Conspiracy to harbor; – Aiding & abetting document fraud or identity theft;– Conspiracy, etc.

• POSSIBLE IMPRISONMENT for pattern and practice of violations

Employer Sanctions for I-9 Violations

Questions

Avalyn C. LangemeierPartner

Foster LLP

alangemeier@FosterGlobal.com

713.625.9232

Helene N. DangPartner

Foster LLP

hdang@FosterGlobal.com

713.335.3929