Immigration Law Associates
Chicago Lawyer, Attorney: Green Card, H-1B, National Interest Waiver, J-1, Spouse, Fiance, Student Visa, VAWA, Citizenship, Removal, Korean, Polish, Japanese, Spanish

Retaining Foreign Nationals: How does your company measure up?

Foreign nationals in the science, technology, engineering, and mathematics disciplines – the so-called STEM fields – are highly desirable workers for a range of U.S. companies. Therefore, although U.S. immigration policies and practices can be extremely burdensome for employers and nonimmigrant staff alike, there is a move towards more accommodation. Examples include the extended Optional Practical Training (OPT) period for STEM workers and most recently the proposal to allow work authorization for spouses of those in H-1B status.

However, government is not the only entity whose policies have an impact on these valuable workers. Individuals holding temporary work visas are often interested in starting the green card process as soon as possible to avoid the many limitations to which they are subject (e.g. the term of the visa, prohibitions on working for dependent spouses, restrictions on changing employers, foreign travel complications, etc.) The immigration practices and green-card sponsorship policies of the employer can therefore make life more or less difficult for foreign nationals on staff. That, in turn, will have an impact on employee recruitment and retention.

A recent survey of employers regarding their immigration policies and the factors influencing them yielded some interesting results revealed the range of corporate immigration policies in the marketplace. Conducted by the Alliance of Business Immigration Lawyers (ABIL), the survey it explored questions including how long a period of employment is required before the company will consider sponsorship; whether there is any change in that statistic since the worst of the financial crisis; and whether/what factors influence a company’s decision to begin or continue an employment-based immigration case.

The majority waited a year before sponsoring, but this applied to only 66% of respondents. The policies of the others fell into, as might be expected, longer than a year but also, perhaps not so predictably, six months. Respondents were split fifty-fifty as to whether this time had become shorter or remained the same since 2008. Other factors relevant to sponsorship included the manager’s approval, which a large majority of respondents (88%) indicated was necessary; and the employee being placed under some disciplinary action, which a much smaller proportion (about half) indicated would delay or halt filing the case.

Government regulations require that the employer pay all costs associated with the PERM labor certification process, the first step in many employment-based green card cases, and such fees may not be reimbursed by the employee. But other types of fees are associated with PERM cases, and there are several visa categories in which STEM workers may apply that don’t require labor certification. As a result, employers may legally ask the individual being sponsored to pay some or all of the costs, depending on the case. However, the large majority of respondents (over 80%) reported that employers do not exercise that option but rather pay all costs. Under other policies, the employer pays for the foreign national staff member, but requires him or her to pay the fees for the derivative beneficiaries (e.g. spouse, foreign-born children). A small group of employers contributes to the fees and expects the individual being sponsored to cover the rest. Finally, about half the respondents indicated that their companies had a “reimbursement policy,” requiring some repayment of sponsorship costs should the foreign national leave the employer within a certain time frame after green card approval.

There are, of course, many individual cases not represented by these broad statistics. Some companies have "nomination periods" during which managers can nominate certain employees for green card sponsorship. Under the EB-1B Outstanding Researcher category, no labor certification is required. Under EB-1A, Alien of Extraordinary Ability; and National Interest Waiver, an EB-2 category, no sponsor is required.

But for a foreign national STEM worker who does not qualify for self-sponsorship or Outstanding Researcher, the employer’s immigration policy may well be an important factor in choosing a position. And for the employer wishing to retain the best and brightest, a policy of speedy sponsorship and generous support of costs may be a useful tool.

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