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Immigration implications when employing an international workforce

By Melissa Azallion

(Editor’s note: This is the second installment in a series on business immigration strategies in today’s immigration climate.)

Proactively staying apprised of immigration regulations and upcoming changes can help employers in assisting their existing international employees with the task of properly managing immigration issues. Employers with a thorough knowledge and understanding of how the immigration system works—including travel implications and document expirations—can help their international workforce to mitigate risks and ensure a smooth immigration process.

Plan for international travel

Vacation, international conferences or business meetings, or an emergency trip abroad may require international employees to visit a U.S. embassy or consulate before returning to the U.S. It is important to properly prepare for upcoming travel abroad by building into your procedures ways for international employees to notify you of upcoming travel plans. A letter confirming their continued employment as well as any status documents they may need are helpful for employees to have on hand while traveling. A contingency plan in the event an international employee gets stuck abroad, should be formulated prior to their departure, particularly when they will need to obtain a new visa prior to their return.

Prepare for U.S. embassy or consulate visits

Visa appointment wait times can be quite lengthy, with some delays of 30 days or more during holiday and summer periods. An expedited appointment may be requested in certain emergency situations, but there is no guarantee it will be granted. Additionally, consulate requirements and procedures often vary from country to country. Therefore, employees who must visit the U.S. embassy or consulate while abroad will need to plan ahead and be well prepared for the interview. A denial could delay his or her return, or worse, prevent him or her from returning to the U.S.

Employees should take with them an employment confirmation letter, copy of their approved petition, passports, required fees, and an original or copy of the approval notice, depending on the requirements of the consulate.

Calendar expirations and extensions

Monitoring visa status expiration dates with thorough calendaring is one of the most essential yet basic practices employers can implement in managing an international workforce. Since many visa cases can be extended during the six-month period prior to expiration, employers should calendar several “lead” dates in addition to the actual expiration date. This will help ensure the extension petition is timely filed so the international employee is able to remain in the U.S. and continue working for the company. Immigration legal counsel often have software programs to assist in tracking these dates.

Tracking expiration dates is also important when planning for a green card. The green card process has fairly strict filing deadlines and can take several months or years to complete. For employers with H-1B visa holders, green card filings should be done a minimum of 365 days prior to the H-1B visa’s 6-year maximum period of stay in order to take advantage of additional H-1B extensions. By meeting this 365-day deadline, employers can continue to file extensions for foreign nationals with lengthy visa backlogs (e.g., India and China), which can range from two to 10 years or more.

Also be aware that a change in the employee’s position—job title, salary, duties, promotion—should be discussed with legal counsel prior to implementing any changes. While some changes are minor and require no additional action, other changes may require the employer to file an amended petition.

Be aware of the impact of criminal violations

If your international employee discloses potential criminal activity, even a seemingly minor offense, it should be discussed with legal counsel prior to traveling abroad or initiating the green card process. Even an arrest without conviction can have serious and immediate consequences for visa holders. Visa denials and/or bars to admission into the U.S. can result from alcohol, domestic violence, and lesser offenses. For certain alcohol-related arrests, such as a DUI, a visa can be revoked immediately. These issues typically arise when an international employee travels abroad and visits the U.S. consulate for a visa renewal or may come to light during the green card process. The earlier these issues are identified, the better legal counsel will be able to review and provide recommendations.

Complete I-9 obligations

As your employee returns from travel abroad, it is important to review their new I-94 admission record for any changes or errors. For certain visa classifications, such as E-1/E-2 for example, the I-94 expiration date (i.e., their period of authorized stay in the U.S.) will change upon each entry into the US and should be properly updated on Form I-9. Failure to properly execute and update Form I-9 can result in civil fines and/or criminal penalties.

By having the appropriate policies in place, employers can anticipate some potential immigration hurdles for existing international employees, and smooth the process for continued employment.

Melissa Azallion is a partner at Burr Forman McNair where she represents clients in multiple industries. She has more than 20 years of experience advising on business immigration and labor employment law issues and may be contacted at [email protected] or (843) 785-2171.

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