Immigration: Anticipating Issues for Existing International Workforce
February 17, 2020Guest Post by Melissa Azallion Kenny, Partner, Burr & Forman
Among global companies, employers play a vital role in working with their employees to properly manage immigration issues. By proactively staying apprised of immigration regulations and upcoming changes and by understanding how the immigration system works — including travel implications and document expirations — employers can help to mitigate risks and ensure a smooth immigration process for their international workforce.
In this continuation of a multi-part series on Immigration, Burr & Forman Partner Melissa Azallion Kenny offers a primer on top issues for employers to anticipate:
Travel
It is important to properly prepare for upcoming travel abroad for international employees. Vacation, international conferences or business meetings, and even an emergency trip abroad can require a visit to a U.S. Embassy or Consulate before returning to the U.S. Build into your procedures ways for international employees to notify you of upcoming travel plans. Typically, it is helpful to equip employees with a letter confirming their continued employment as well as any status documents they may need. Prior to their departure, it is also important to have a contingency plan in the event your employee gets stuck abroad, particularly when they will need to obtain a new visa prior to their return.
Visiting the U.S. Embassy or Consulate
Employees who must visit the U.S. Embassy or Consulate while abroad will need to plan ahead since visa appointment wait times can be quite lengthy, with some delays of 30 days or more during holiday and summer periods. In certain emergency situations, an expedited appointment may be requested, but there is no guarantee it will be granted. In addition, it is crucial your employee is 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.
Consulate requirements and procedures often vary from country to country. It is recommended that employees 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.
Expirations and Extensions
One of the most essential yet basic practices employers can implement in managing an international workforce is to carefully monitor visa status expiration dates with simple, but thorough, calendaring. Since many visa cases can be extended during the six (6) month period prior to expiration, employers should calendar not only the actual expiration date, but several “lead” dates as well. Keeping additional reminders on the calendar before a status expiration date will help ensure the extension petition is timely filed so that your employee is able to remain in the U.S. and continue working for the company. Immigration legal counsel often has software programs that can assist in tracking these dates as well. Tracking expiration dates is also important when planning ahead 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 at least 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 2 to 10 years or more.
Extending the stay of the international employee is not the only critical time to monitor. 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.
Impact of Criminal Violations
A conviction or even an arrest without conviction can have serious and immediate consequences for visa holders. 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 they could surface during the green card process.
Alcohol, domestic violence, and even lesser offenses can result in visa denials and/or bars to admission into the U.S. 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.
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.
For questions about immigration issues, please contact Melissa Azallion Kenny of Burr & Forman’s immigration team at [email protected] or (843) 785-2171.
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Interested in more on immigration? See other posts in our series: