Hiring Foreign Nationals: What Should an Employer Do?
.
5. Cost Shifting by Any Other Name
Not only is the employer prohibited from directly shifting certain costs onto foreign national employees, but employers are also prohibited from shifting costs indirectly by way of deducting these costs from the employee’s wages or structuring the reimbursement of such costs in the form of loan repayments. While the prohibition against cost shifting, currently, applies to the labor certification phase of greencard processing and H-1B processing, it would not be surprising that other phases of the greencard process could also become subject to cost-shifting restrictions.
6. The Take Way
- Find out as soon as possible if a prospective employee has an immigration status. To ascertain this fact in a non-discriminatory way, employers should use a standard employment application or questionnaire which asks all potential hires the same questions.
- Involve immigration counsel early on because an employee’s immigration status may trigger filing requirements.
- Make it clear in offering documents that employment is contingent on the prospect’s obtaining the proper immigration status.
- Foreign nationals do not have the right to a greencard. Employers should be dissuaded from including in hiring documents commitments to undertake greencard processing without first consulting immigration counsel.
- If there is concern that employees’ seeking immigration status sponsorship will bolt the employer as soon as their status becomes secured, consider, with the advice of competent counsel, whether inserting a liquidated damages clause in hiring documents would be appropriate.
Related articles:
Requirements to Hire a Foreign National From Another Company
