Employers Need to Utilize Their Foreign-Born Employees Without Harming Them

by Joseph P. Whalen

Whether an employer already has offices outside their country or is just starting to branch out, their foreign-born employees may be highly valuable assets. Different countries have different laws, languages, traditions, cultures, sensibilities, and work ethics. There are likely many other differences that I am not listing here but these few examples should serve to illustrate the point. Employees have varied backgrounds with rich,  diverse, and individualized sets of knowledge, skills, and abilities (KSAs) in their posession.  Employers who wish to make full utilization of their workforce need to use a little bit of caution before sending their foreign-born employees abroad whether into the United States or out of the United States.

One approach to expanding their businesses is to relocate an employee to an operation abroad and apart from the home country, in other words export an employee. Another way is to import an employee from abroad to the home country or even a third country depending on how multinational the organization is. From the perspective of U.S. immigration laws, we may be dealing primarily with H and L nonimmigrant visa petitions for temporary placement.  H-1 and L-1 nonimmigrants will often transition to more permanent employment in the U.S. as EB-1 or EB-2 immigrants. H-2 employees more often than not might transition to EB-3 immigrant status. There are other permutations involving student visas or other statuses such as TPS, DED, or parole statuses. This article is more concerned with the more traditional employment based classes. 

When dealing with globetrotting employees, there are a host of ancillary issues to keep in mind. Specific visas have specific limitations on aggregate periods of stay and status. There are prerequisites as to periods of employment in various contexts that affect future status changes or maintenance of status. And after an employee gains lawful permanent resident (LPR) status or in the vernacular, obtains a greencard, the question of future naturalization comes into play.

  One way an employer can help their foreign-born employees is to have in-house immigration counsel, or at least an experienced immigration paralegal to deal with the paperwork. There can be a ton of paperwork involved. If so inclined as to have in-house counsel, be aware of where to draw the line. The possibility exists for an attorney to have conflict of interest issues arise if they take on too much for both the employer and employee. The petitions used are the I-129 for a nonimmigrant worker and the I-140 for the immigrant worker. These petitions are to be filed and paid for by the employer, and these are only the USCIS forms.  The employer also has to deal with the Department of Labor (DOL). The employee has to deal with USCIS and perhaps the State Department (DOS). Employers often will cover certain costs such as certain USCIS and DOS fees as well as all DOL fees when importing an employee.

It is also a standard practice for employers to pay for USCIS Form N-470, Application to Preserve Residence for Naturalization Purposes.  This last one is less well known to many employers and employees for that matter.  It is utilized by an LPR employee who is sent abroad for an extended period of time, usually taking the immediate family (spouse and kids) with them, by an employer in order to avoid screwing up their eligibility for naturalization as a U.S. citizen.  Once a foreign-born employee naturalizes, that employee and their employer can breathe free and no longer have to pay filing fees and legal costs.

Employers are encouraged to either study the immigration laws and regulations or hire competent immigration counsel to do it for them. Employers hate to lose employees over immigration issues after spending so much to get them onboard in the first place. I wrote about this much more extensively and it was published in Immigration Daily on November 29, 2011,[1] I felt a reminder was once again due. Remember that failing to plan is almost always planning to fail.

That’s My Two-Cents, For Now!

[1] https://www.ilw.com/articles/2011,1129-Whalen.shtm

About The Author

Joseph P. Whalen is an independent EB-5 consultant, advocate, trainer and advisor.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.