Control Your Immigration Spend
By Jerome G. Grzeca Founder & Managing Partner | November 2024
This article was co-authored by Carly Hetland, Immigration Attorney
This article was co-authored by Carly Hetland, Immigration Attorney, Grzeca Law Group
Do you have an immigration policy? If so, is it used to set guidelines on employer involvement and spend? If so, are these guidelines updated and detailed enough to protect you from paying unrelated expenses for visa procurement? If not, it’s time to get a policy or update your old one.
From time to time, hotels may choose to sponsor a foreign national applicant for employment or a current employee for temporary work authorization and/or U.S. Lawful Permanent Residence status (LPR or a so-called “green card”) by filing the appropriate petitions and applications with U.S. Citizenship and Immigration Services.
However, hotels have no legal obligation to initiate or continue such sponsorship. Payment of expenses varies widely from company to company. In the event a hotel wishes to engage in visa sponsorship, it is imperative to have an Immigration Policy in place guiding that process.
As we head into a new year, it is a good time to consider implementing an immigration policy or revamping an outdated one. An immigration strategy that is supported by the right policy not only will save you thousands of dollars on your budgeted immigration spend, it may also enable your business to attract and retain foreign talent. Moreover, it may keep your hotel compliant with current immigration and employment laws, which are essential if engaging in that practice.
A visa sponsorship Immigration Policy at its core provides critical protection to employers and sets guidelines and parameters regarding when and whom an employer will sponsor. It should also cover which party will cover the fees and expenses of the various stages of each process, including filing fees for dependent family members or plane tickets and hotel accommodations for visa appointments overseas that may involve personal visits home. In addition, it should provide discretionary starting points and escape clauses for employers if the employee is not cooperating fully with the process or is about to be terminated for cause.
An employer should never feel compelled to continue in a bad sponsorship scenario. Relying on a professionally drafted Immigration Policy allows for an employer to refer to the guidelines before beginning or continuing further and sets the tone of the relationship between employers and employees. This may prevent accusations of unequal treatment in benefits to employees. Immigration policies should also address issues that arise during the hiring and onboarding phase, employment and the separation of foreign workers.
For example, how will your company address questions regarding a worker’s status? What documentation will the company retain and who is responsible for tracking employment authorizations? Many employers make the mistake of letting the foreign national employee who is interested in proceeding pick their lawyer and drive the process. However, employer-sponsorship requires a lot more than signing some documents. While employee cooperation is essential throughout the process, employer oversight and control are more important.
Successful immigration programs are driven by the employer, not employees. After all, it is the employer who is submitting documentation and making representations to government officials under the penalty of perjury. As such, many employers prefer to include a clause within their immigration policy confirming that they shall engage attorneys of their choosing to represent the company and prepare and file immigrant and non-immigrant petitions. The use of one attorney fosters a strategic partnership whereby the attorney understands the employer’s business practices and needs, shares the same goal and ensures consistent preparation of documentation.
Although immigration policies should outline a time frame in which the hotel would consider sponsoring a green card, the decision to sponsor a foreign national applicant or employee for temporary (non-immigrant) work authorization and/or U.S. LPR shall be made by the hotel in its sole discretion. In determining whether to initiate and/or continue such sponsorship, the hotel may consider a variety of factors outlined in an Immigration Policy. These factors include but are not limited to: the benefit or potential benefit of such sponsorship to the hotel; the quality of the employee’s performance; the number of years of service to the company, and more importantly, in a green card scenario, the number of years in the U.S. position; the applicant or employee’s prior U.S. immigration status and visa history; and, the applicant or employee’s cooperation with the hotel and their attorneys in their attempt to prepare documents required for sponsorship.
Furthermore, although the Immigration Policy will outline factors an employer will consider when deciding to sponsor a foreign national, it should also clearly articulate that management can choose to expand or contract those parameters at its discretion. It should also state that the employer cannot guarantee that a petition or application on behalf of an applicant for temporary work authorization or LPR status will be successful. If the hotel agrees to sponsor a petition for permanent residence status, it may also want to implement a U.S. Permanent Residence Reimbursement Agreement which may protect against untimely departure from the hotel shortly after U.S. permanent residence is obtained by that individual. Such Reimbursement Agreements are designed to recoup the extensive fees and expenses related to these matters, if allowable under State and Federal laws. Certain reimbursements are not allowed and unwitting employers may be violating the law by having an eager employee convince them that everything can be paid for by the employee.
For “at-will” employment states, immigration policies may include a clause confirming that sponsorship for temporary work authorization and/or LPR status does not alter the employer’s “at-will” policy or confer any right of continued employment in the United States or elsewhere. Thus, approval of a non-immigrant or immigrant petition does not bind parties to a particular term of employment. It also should indicate that the company may, in its sole discretion, withdraw sponsorship at any time.
Along those same lines, immigration policies can guide current employment and compliance with applicable regulations by clearly outlining the process and policies for job changes in relation to the duties or worksite location. For example, immigration regulations require that amendments be filed prior to a “material change” occurring. Many times, the need for an amendment is not discovered until months later and employers are left to assume the risk of not timely reporting the change. In some circumstances, the proposed job change may render an applicant ineligible for the visa category he or she currently possesses.
An Immigration Policy that clearly outlines the chain of communication that must be followed when considering a job change for a foreign worker provides clear expectations of reporting and ensures the employer and employee continue to honor the terms and conditions of the visa. Often times, an Immigration Policy will require that unless contacted directly by the attorneys handling their non-immigrant or LPR cases, applicants and employees shall coordinate contacts with the attorneys through the employer’s talent and culture department. It also articulates that applicants and employees are required to contact the talent and culture department immediately regarding any changes in address, marital status, job duties, and job location to ensure proper notification to their immigration attorneys and the U.S. government, if required.
Providing answers to these crucial questions delivers clear notice to candidates, employees and hiring managers and mitigates concern for discrimination over a worker’s status or requirement of sponsorship. Failure to comply with worksite enforcement can have significant consequences that could be mitigated, if not avoided entirely, by an effective Immigration Policy. As mentioned above, comprehensive immigration policies can also minimize declarations of discrimination or unfair treatment by clearly outlining the company’s willingness to begin sponsorship of permanent residence for the foreign worker and his or her family, the types of visas supported by the company, reimbursement for international travel, and employee reimbursement obligations in the event of termination or resignation.
When designing an Immigration Policy, employers must be clear about what they will pay for and what it will not. For example, immigration policies should discuss responsibility for the costs of non-immigrant travel documents required for personal and business travel, financial responsibility for dependents’ immigration-related fees and expenses; and responsibility for fees associated with premium processing a petition, when available. Clarity in communication with respect to an employer’s stance on immigration often fosters a better onboarding environment and culture. It also eliminates the employer getting stuck paying for all of the above under the premise that all such expenses are necessary to keep the employee from falling “out-of-status.” The truth lies somewhere in between but a tight policy helps remove gray areas.
Finally, an Immigration Policy also provides innumerable benefits when recruiting foreign talent. When foreign workers are seeking employment in the United States, one of the most frequently asked questions during the interview stage involves the company’s willingness to sponsor a green card application.
Many employees are looking for a definitive timeline in which permanent residence is sought, and others may compare immigration policies in its entirety when seeking employment opportunities. If applicable, we would suggest that hotels develop recruitment materials around its willingness to sponsor foreign nationals to further promote the benefits that it offers in contrast to its competitors.