By: Bruce Buchanan, Sebelist Buchanan Law
For years I have been advocating for companies to have a written immigration compliance policy to cover compliance with completion of I-9 forms and related topics. After attending a recent AILA conference on immigration compliance and worksite enforcement in Boston, I will now be advocating establishment of “Corporate Immigration Policies” for those employers who sponsor or plan to sponsor employees for non-immigrant visas, such as H-1B, TN and L, as well as immigrant (green card) visas.

What does a Corporate Immigration policy entail? One item should be what will the company pay for or reimburse an employee for? Some visas, such as H-1B, require the employer to pay for the attorney fees and filing fees, and immigrant visas require the employer to pay for all costs of a PERM labor certification. However, there are a number of fees that foreign nationals may incur while being sponsored by their employer, including medical exams for immigrant visas, I-765 applications for the foreign national’s spouse and children; I-539 petitions for spouse and children when the employee is in H-1B, TN or L status; and attorney’s fees and filing fees for L executive/ manager applying for a green card.

There is no perfect answer as to a policy on what an employer should pay for. In some hyper-competitive work environment, such as nurses and IT, employers will pay for all additional expenses, even the cost of obtaining passport photos. Some employers will not pay for anything not required under this law. Some employers are in the middle – paying some expenses and not paying others.

Other items that a company may want to include:
  1. Third country visa processing is disallowed because it usually costs more money and has more unsettled issues than a home country consulate;
  2. Clawback policy where employee must pay back a portion of visa costs if employee leaves within a specified period of time. However, for H-1B visas, be careful that it is not a penalty but rather a liquidated damages provision;
  3. Visa holder must maintain a favorable job performance in order for the company not to recoup certain fees and expenses that an employer is not required to pay;
  4. Clearly defined benchmarks for when the company will initiate green card sponsorship;
  5. Rule for when the company will consider an immigration sponsorship, such as after one or two years of favorable employment;
  6. Sponsorship of an employee for an immigrant visa is entirely in the company's discretion; and
  7. It is in charge of how the sponsorship proceeds and should identify the individual(s) or position(s) vested with the authority to manage the sponsorship process.
If you want to know more information on employer immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.