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TOOL Immigration Issues for U.S. and U.K. Employers

May 20, 2010

For many employers in the United States and United Kingdom, talented workers from overseas are vital to the continued success of the business. Because of the intricacies of immigration law in both jurisdictions, employers should proceed carefully and obtain sound legal advice each and every time a non-domestic worker is hired, retained, transferred or even terminated. Following are some considerations for U.S.-based employers:

Explore strategies to expedite hiring
The fiscal 2010 window of availability for H-1B visa filings closed December 22, 2009. In fiscal 2011, H-1B applicants cannot request a start date earlier than October 1, 2010. So what can an employer do to plug that nine-month gap?

The following are strategies that U.S. employers might be able to use to expedite the employment of foreign national workers:

H-1B portability: Visa portability provisions allow a foreign national accorded H-1B status to begin working for a new H-1B employer as soon as the new employer files a “nonfrivolous” H-1B petition on behalf of the foreign national. Such portability provisions relieve the foreign national from the need to await approval notification from U.S. Citizenship and Immigration Services before commencing new H-1B employment.

Premium processing: USCIS has established a premium processing program to expedite the adjudication of certain employment-based petitions and applications within 15 calendar days upon payment of the premium processing fee. In addition to H-1B, the following non-immigrant visa categories are eligible for premium processing: E-1/E-2, H-2B, H-3, L-1, O-1, P-1/P-2/P-3, Q-1, R-1 and TN.

Have a policy for terminating foreign nationals
Of course, layoffs are a fact of life, especially in today’s economic environment. In circumstances involving a reduction in force, U.S. companies typically offer a few weeks of severance (with the date of termination effective immediately) in lieu of providing the employee with notice of the actual termination.

While such severance packages may be fair, they can present a unique set of problems to terminating individuals employed on a work visa, since most work visa classifications are “employer specific.” This means that the foreign-national worker is dependent upon his/her employer for his/her ability to remain legally in the United States. Indeed, the U.S. Department of Homeland Security considers a foreign national worker to be “out of status” as of the date of termination—regardless of the duration of employment or amount of severance.

For a terminated foreign national to remain in the U.S. for an authorized period of time, an application for an extension of stay (assuming new employment is found) or a change of status to another non-immigrant classification (e.g. B-2 visitor for pleasure) must be filed prior to or contemporaneous with the termination of employment. This is true not only for the worker, but also for his/her family. A failure to do so will likely render the entire family “out of status” and subject to removal from the United States.

To mitigate these harsh effects, employers should consider providing foreign-national employees with a fair period of notice before they are actually terminated from employment.

Following are some immigration law considerations for U.K.-based employers:

Establish which rules are in force
Since the U.K. Border Agency introduced its so-called points-based system to regulate immigration in late 2008, there have been several amendments made to both the immigration rules and to their accompanying guidance. Although these changes have been largely welcomed, there have been some “teething problems” with the new system, and it can be difficult to keep track of which rules are applicable to the situation in hand.

For example, several major changes to the points-based system occurred on April 6, 2010. Given the recent changes, it is important that relevant staff members receive regular and adequate training on the U.K. immigration rules to avoid inadvertent breaches of the law. If you are unsure as to the nature or source of the new rules, specialist legal advice can be provided by immigration counsel.

Should the entity become a registered sponsor?
The points-based system is composed of five “tiers” that replaced all the previous work permits and entry schemes. There are pros and cons to each available tier, which will require careful analysis before any position is offered to an employee who is not a citizen of a European Economic Area member country or Switzerland.

For example, a larger international organization hiring non-EEA/Swiss employees on a regular basis might prefer to use the Tier 2 sponsorship route, where available, because once the initial administrative hurdle of becoming licensed by the UKBA has been overcome, time will be saved when each qualifying migrant employee is offered a position. But that initial registration process to become a licensed employer can be cumbersome and expensive. Ongoing sponsor compliance obligations and duties are also onerous, and the UKBA will often closely monitor licensed employers.

Smaller employers or those offering a one-off position to a non-EEA/Swiss employee should consider other routes than Tier 2 sponsorship. For example, although Tier 1 generally is aimed at individuals, it can also be very useful for an employer not wishing to become a registered sponsor licensed by the UKBA.

Communication with the employee in question will often be vital to ensure that his or her family and their future needs are considered. For example, if they wish to eventually settle in the U.K., some immigration tiers under the points-based system may make this easier for them, while another may not.

Keeping internal records up to date
Whichever route is chosen by the U.K. organization to employ foreign workers, essential housekeeping of personnel files must be done on a regular basis. This means human resources record keeping in terms of, for instance, keeping track of which employees require visas and the dates on which those visas are due to expire, to avoid any inadvertent breaches of immigration rules.

The UKBA has powers to issue warnings and both civil and criminal penalties, and fines can be issued of up to £10,000 ($14,490) per illegal immigrant employed by an organization, which can prove extremely costly. In addition, following a violation, sponsorship status will be demoted or revoked, and individual workers can be deported and banned from re-entering the U.K. if found in breach of the immigration rules.

Lastly, here are some important consideration for U.S.- and U.K.-based entities:

It is the job of immigration counsel, in partnership with business owners and/or human resources personnel, to focus on “the bigger picture” for key, foreign-born personnel to ensure that those individuals are in a position to gain entry to and then remain in the U.S. or U.K. for as long as necessary to achieve the goals of the business. Such long-term strategies should be discussed prior to, or at the time of, hiring each foreign national (leaving sufficient time to collect relevant documents and submit immigration applications), and should be revisited over the course of the employment relationship with each such employee. These plans should never be left until the eleventh hour as a lack of advance planning can result in shortchanging your long-term employment options with a valuable employee.

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The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.