Hiring Foreign Nationals: What Should an Employer Do?
Review this 7 item checklist before hiring a foreign national.
Hiring foreign nationals is unlike hiring other categories of workers and requires the prospective employer to consider a range of issues.
When considering the hiring of a foreign national, employers should consider the following:
1. Find out if the Employment Prospect is Authorized to Work in the U.S.
The anti-discrimination rules contained in the Immigration Reform and Control Act of 1986 prohibit employers from discriminating against persons on the basis of national origin. It is therefore illegal for an employer to refuse to hire an employee on the suspicion that that person is an undocumented alien. An employer also cannot be selective in asking certain candidates whether they are authorized to work in the U.S. while not asking others. To address this problem, all prospects should be required to fill out employment applications or questionnaires where the question is asked. While employers cannot discriminate on the basis of a person’s nationality, they have the right not to have to undertake immigration obligations to sustain a foreign national’s status in the U.S.
2. The Next Questions to Ask
After determining that the prospect needs a visa to work and live in the U.S., the next inquiry should be to determine what that status is and when it will expire. The answer to these questions can help immigration counsel advise the employer regarding the proper filings that may need to be made to complete the hiring. It can also help the employer understand what actions may need to be taken and resources expended on maintaining the prospective employee’s immigration status.
3. Employment Should Always be Conditioned on the Employee’s Being able to obtain Legal Immigration Status
Having an employer file for an H-1B visa or greencard is not cheap, sometimes costing thousands of dollars in filing and attorneys’ fees. For this reason, employers need to understand that they have no obligation to sponsor a prospect’s immigration status and should make it clear in hiring documents that the employment is contingent on the employee’s being able to obtain the requisite status. Employers should also not blithely agree to sponsor a prospect for a greencard until after immigration counsel in consulted.
4. When the Employee is Playing Hopscotch
What can an employer do to mitigate the risks that after spending time and money to obtain an employee’s H-1B status or greencard that the employee jumps to another employer. The first point to consider is that both Immigration and Labor regulations prohibit employers from shifting onto employees the costs of H-1B and labor certification (LC) processing. LC processing is, generally, the first step toward processing a greencard for an employee. The regulations have also been construed to preclude employers from seeking recoupment of fees and costs in the event an employee moves on to a new employer even a day after securing the sought after status. One approach that has not been precluded is to include in an employment agreement or offering letter a liquidated damages clause that would allow the employer to claim anticipated damages caused to the company by the breach. Because liquidated damages clauses need to be crafted with some care so as not to expose the employer to liability, employers should consult with immigration and employment law counsel who are in the best position to evaluate the reasonableness of such clauses under the circumstances.
Next- 5 Cost Shifting and 6 Takeaway
