It’s Monday morning, with no emergencies on the horizon until the human resources manager calls. The information technology department is excited because Bob, the new software-applications wiz, has accepted the job offer and is ready to come onboard. Marketing has the press release almost complete, and facilities staff is measuring Bob’s office for a custom-made three-tier desk.
But, wait a minute. Right before hanging up, the HR manager says Bob hails from Canada and mentions something about immigration paperwork and work-permit transfer. Plus, his spouse really hit it off with the marketing office of the local grocery store chain and is eager to start working there upon arriving in Texas.
What is the jack-of-all-trades general counsel to do when faced with this start-of-the-week challenge? How can the GC navigate the murky immigration waters without putting the hiring process at risk or slowing down the new employee’s start on the job? Here are some steps to quickly develop a plan of action to reconcile the company’s workforce demands with the realities of the immigration world.
The first line of defense is prevention. In-house attorneys (and especially those working for multi-office companies) can be proactive, educating the HR department — and those who manage other departments and offices — that they always should channel immigration-sponsorship issues to the legal department as soon as a prospective employee’s immigration status shows up on the radar. This prevents last-minute surprises, disappointments, and possible claims of employment discrimination or promises unfulfilled.
However, when the Monday morning call comes through, the GC should find out the following information:
1. How far along has the hiring process progressed?
2. Has the company extended a job offer? If it has and company sponsorship is required, did the manager condition the job offer on the immigration proceedings’ success?
3. Has the new hire raised immigration issues on his or her own? It’s important to put an immediate end to inappropriate inquiries regarding immigration status if an interviewer or manager is being overly zealous.
4. If the job seeker has brought up the need for immigration assistance, who has the relevant information? Is any documentation available for review? Do the job seeker’s family members need assistance, as well?
5. Has someone advised the foreign worker not to quit his current position until the hiring company addresses the issue of sponsorship and makes the necessary filings?
The latter points are important. The need for immigration sponsorship often is urgent, but questions asked tend to be cursory. Often, those responsible for hiring obtain little substantive information until experienced legal department and HR personnel get involved.
If there is one step that should come ahead of others in this hypothetical Monday scenario, it is this: The GC should recommend that the HR manager tell the new hire to maintain his current employment until the HR manager advises him it is safe to notify the soon-to-be former employer. A job seeker’s premature notice to his current employer may result in employment termination before completion of immigration proceedings needed to transfer the worker’s employment authorization. This may lead to immigration complications further down the line.
The next step is to ensure there is an employee-transfer and new-employment start plan and to set realistic timelines. It pays to effectuate the transfer properly and without the haste that may cause errors in immigration strategy errors or force the employee to start on the job prematurely.
After the GC obtains answers to the questions above and revises the possibly unrealistic expectations regarding the new worker’s ability to start immediately, it’s time to discuss immigration options with a lawyer who focuses on immigration law. That attorney invariably will ask for copies of all immigration documents the new worker has in his possession (for himself and his family), the new hire’s résumé and job-offer details.
There is a U.S. visa for, virtually, every letter of the alphabet. Immigration options can range from an H-1B visa (for a professional) to an L-1 visa (for an intra-company transferee) to a TN visa (possibly, for Bob, the Canadian IT wiz) to an E-2 visa (for an international executive). But specific immigration options depend on the company’s and job candidate’s unique characteristics and circumstances. The legal department needs to put all options on the table and present the management team with costs and time schedules before making the final sponsorship commitment.