The Law Offices of Robert Nadalin

How Would A Hiring Manager Become Aware That A Candidate Requires Visa Support?

A candidate may volunteer this information, or an employer may learn of this information when it moves to complete a Form I-9 after an offer of employment has been made and accepted. Federal law prohibits discrimination against persons because of their immigration status but also does not permit the employment of persons not lawfully authorized to work in the U.S. A private sector employer normally may not limit a position only to U.S. citizens or lawful permanent residents absent other applicable laws, such as matters involving controlled technologies, national security, or certain licensing processes. An employer often learns of the need for visa support after an offer of employment has been made. The employer is not obligated to provide visa support and may withdraw an offer made to a candidate who does not have an independent basis for lawfully working inside the U.S.

Is There A Way For An Employer To Know Earlier In The Hiring Process If A Candidate Requires Visa Support?

An employer may ask: “without telling me which one, are you a U.S. citizen, lawful permanent resident, refugee, or asylee?” All of those categories are considered to be “U.S. workers” under the current law. Another more open question, and perhaps the safer phrasing, may be: “are you now lawfully authorized to work for any employer in the U.S.?” Another alternative may be: “Will you now or in the future require work visa sponsorship?” This last alternative is less preferred because some feel that it may imply that persons who presently hold a temporary work authorized status may be excluded.

After Learning That Work Visa Support Is Needed, What Are An Employer’s Options?

Like U.S. tax law, immigration law is exceedingly complex. It is often appropriate at that point to contact immigration counsel to confirm the available options and next appropriate steps. The next appropriate steps may vary depending on the type of visa the candidate holds and related factors such as whether or not the candidate is still maintaining a lawful status.

How Is Immigration Status Defined?

There is no regulation that covers this in a clear way under a single definition. Instead, one must look at a number of different rules and provisions to confirm status, which is broadly understood to mean that the candidate is complying with all terms and conditions applicable to his or her lawful admission into the U.S.

Does Staying On Payroll Related To Status?

The immigration service often equates employment-based visa status to payroll. Although grace periods may apply in some circumstances, a candidate who continues to stay on the payroll of the current sponsoring employer is normally understood to be maintaining status. As such, it is often helpful for the candidate to remain on that payroll through the time that lawful work authorization can be secured on behalf of the new employer.

Are There Any Special Consideration For H-1B Candidates Who Intend To Pursue An H-1B Transfer To A New Employer?

The new employer should confirm when the candidate first obtained H-1B status for any U.S. employer. A candidate’s H-1B status is limited to a maximum of 6 years for all U.S. employers. This means that a candidate who first obtains H-1B status 5 years ago may only have one year of time remaining before he or she must return home or secure an alternative visa status. There are two exceptions to that rule: one for persons for whom an employment-based green card process was filed at least one year previously; as well as a second option for persons who have an approved I-140 immigrant petition whose green card quota date, called a “priority date,” is not current.

What If A Candidate Has Personal Or Business Plans That Require Travel Abroad In The Next Few Months?

International travel is always potentially a case complicating the issue. A candidate should not make any firm plans to depart the U.S. during a visa process without first obtaining an okay from the supervising immigration attorney. Important considerations include whether or not the travel will result in the abandonment the process, and whether an application for a new visa stamp through a U.S. consulate will be required.

What If The Candidate Has A Pending PERM Labor Certification Application, An I-140 Immigrant Petition In Process Or Approved, Or An I-485 Adjustment Of Status Application In Process?

A pending PERM or I-140 process may provide a basis for additional H-1B extensions. An approved I-140 petition may also provide a basis for an H-1B extension and may also allow a candidate to maintain his or her place in the green card quota line. An approved I-140 with a pending I-485 may provide a basis for transferring the entire green card process to a new employer if I-485 application has been pending for at least 180 days and the new employment will be same or similar to the employment opportunity outlined in the I-140 petition.

Are There Any Other Important Timing Considerations?

It often takes at least a few weeks, and sometimes longer, to have all of the necessary documentation in place to support the transfer of work authorization to a new employer. For this reason, and if possible, a candidate should not stop working for the preceding employer until the new employer’s work authorization documentation is in place. For example, an H-1B “transfer” petition requires that a labor condition application (LCA) first be certified by the U.S. Department of Labor, a process that takes 5-7 business days, and that the USCIS petition documentation be reviewed, signed, and submitted to USCIS for processing. This means that even on an expedited timeline it often takes at least 2 weeks to prepare and submit a case for filing. Other processes may take more or less time.

Are There Any Other Important Points For Employers To Consider?

Employers should be sure to perform the appropriate due diligence steps prior to committing to hire a foreign worker who needs visa support. That may include confirming the person’s present status, and working with immigration counsel to confirm budget and timing considerations that may apply to bringing the candidate on board as well as any processes that will be required in the future to maintain the sponsored employees continuing lawful work authorization. It may also be important to keep in mind that it is not unusual for a candidate to underestimate that amount of time and expense required to support a lawful work visa. Prior proper planning can help employers to better manage budgeting, salary requirements, as well as matters of timing.

For more information on Foreign Hires Immigration, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (619) 234-8875 today.

The Law Offices of Robert Nadalin

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