Most US companies, large and small, can benefit from extending their talent pool to include qualified international candidates. This, however, raises a number of questions regarding an employer's immigration related responsibilities when hiring foreign workers. Below are 7 tips for HR Managers to consider when hiring foreign talent:
Employment authorization through the H-1B, E, O, TN, L-1 (or other employment based) categories are tied to ONE specific employer and for a limited duration. If a foreign worker holds one of these visas and you are hiring them, you will need to transfer the visa/status to your company OR sponsor them anew.
When hiring a student out of school, employment authorization through "OPT" (Optional Practical Training) time does not automatically extend to full time, long term, employment authorization. This means that a longer term sponsorship plan should be in place for post one- year OPT employment authorization. This plan will involve appropriate employer sponsorship.
There is a difference between nonimmigrant and immigrant visa sponsorship. Employers do not have to commit to immigrant (green card) sponsorship immediately when hiring a foreign worker. You can start with nonimmigrant sponsorship options first, then consider green card sponsorship as you develop a relationship with the employee.
If a potential foreign worker has already been sponsored through a family based green card category (such as through a US citizen spouse) and already has employment authorization through that route, they can be hired by any US employer without any further sponsorship requirements.
When a company employs foreign workers, there should be a plan in place for tracking expiration dates and appropriate immigrant status documents such as visa stamps and I-94 records. A visa stamp is not authorization to work, but it is permission to enter the country. When international employees are traveling, they must ensure that their visa stamps are valid in their passports or account for the time it will take to get a new one during their trip. For nonimmigrant international employees, I-94 records are entry documents which are updated by DHS at every entry and departure. This record indicates a nonimmigrant's status and expiration date and should be checked and documented by the employer as well.
For "freelancers" or independent contractors, appropriate employment authorization to work for your company is still required. In certain situations, an O-1 visa holder may be able to freelance for you without further immigration sponsorship. However, it is important to discuss this with an experienced immigration attorney before hiring O-1 visa holders as freelancers or independent contractors.
Finally and importantly, HR Managers/teams should remember to complete I-9 records at the time of hire; review all original documents; complete necessary sections within the required timeframe, and verify expired work authorization. I-9 records should be retained and the company should be prepared to present I-9 records for inspection if necessary.
As always, this post is for informational purposes only and should not be construed as legal advice. Please contact an experienced immigration attorney for specific legal advice about the hiring of foreign workers!