FAQs
LEGAL INSIGHTS
Essential Legal FAQs for Employers
The information provided here is intended to be general in nature and does not constitute legal advice.
I’m an HR consultant for small businesses. What are some internal audits and procedures I can use to set my clients up for success?
We recommend a few baseline best practices:
- I-9 Audits: Regularly review all I-9 files for errors, missing signatures, and incomplete sections. Ensure they are stored separately from personnel files.
- Work Authorization Tracking: Maintain a log of employees with temporary work authorization and set calendar reminders for upcoming expirations to allow plenty of time for renewals.
- Onboarding Procedures: Standardize the I-9 completion process for new hires and train hiring managers on acceptable documents and legal requirements.
- E-Verify: Assess whether E-Verify enrollment is required or recommended in your state and ensure queries are run consistently.
- Recordkeeping: Follow proper I-9 retention schedules and purge terminated employee records on time to reduce liability.
We have extensive experience working with HR professionals, and can help ensure you are set up for success. Reach out to schedule a consultation today!
What should I do if an employee's work authorization is expiring?
Begin the renewal process as early as possible (ideally at least 6 months before the expiration date). Notify your immigration counsel promptly so they can assess the appropriate visa category and timeline. Waiting until the last minute can result in gaps in work authorization, putting both the employee and employer at risk.
As a small business, do I need an immigration attorney or can I handle work visas internally?
While some basic processes can be managed internally, immigration law is complex and frequently changing. An experienced immigration attorney can help ensure petitions are filed correctly and on time, reducing the risk of costly denials or delays. For small businesses especially, a single misstep can have a significant impact on retaining key employees.
What is business immigration?
Business immigration law is helping companies to lawfully employ foreign national professionals through sponsoring them on work visas. It also involves helping companies to sponsor foreign national employees for permanent resident status (“green cards”).
What does the corporate immigration process look like for businesses hiring foreign workers?
This is generally about sponsoring the foreign national on a work visa such as an H-1B or if they are being transferred from the company’s office abroad, an L-1 Intracompany Transferee visa. There are also a handful of special work visas that have benefits over the H-1B for countries that have special treaties with the United States such as the E-3 for Australians, TN for Mexicans and Canadians, and the H-1B1 for Singaporeans and Chileans. In addition, around 80 countries have access to the special E-1 and E-2 Treaty Trader/Investor visas.
What are the first steps in employing a foreign worker?
The best first step is to allow our immigration law firm to complete an assessment of visa options. Our firm will generally need the following minimum documents in order to conduct this assessment: a detailed and updated resume for the candidate, proposed US job description, and, if they are already employed abroad, current job description.
What kinds of employment-based visas are available for foreign workers in the U.S.?
H-1B Specialty Occupation, L-1 Intracompany Transferee, TN for Canadians and Mexicans, E-3 for Australians, H-1B1 for Chileans and Singaporeans, E-1 and E-2 for around 80 nationalities, O-1 for those with “extraordinary ability.”
How do I know whether an employee/future employee will need a work visa?
If they are not a US citizen, permanent resident, or otherwise have work authorization, they will need a work visa. Even if they already hold H-1B status, a petition will still need to be filed to transfer their H-1B to your company.
How do I know what kind of visas my employees need?
Ask your immigration law firm to conduct an assessment.
What are employee visa transfers?
This refers to a situation where the employee already holds a work visa, but it needs to be transferred to your company so that they can work for you, as work visas are employer-specific.
How long does the work visa process typically take?
It varies considerably but is usually around 1-3 months.
What is the process for extending an employee’s work visa?
The process is similar to the initial application. It is best to start the extension process at least six months prior to expiry. In addition, it is important to keep in mind “max out dates,” the dates when the visa can no longer be extended. For example, H-1Bs “max out” after six years. Usually companies will start the green card process well in advance of this date.
How long does the green card process typically take?
For the standard process that requires PERM Labor Certification, usually around 2-3 years. For nationals of countries subject to visa retrogression, such as India and China, they may need to wait 10 years or more before being able to finalize the process.
What is an immigration petition, and when is it necessary to file one?
Petition-based work visa categories require a petition to be filed with U.S. Citizenship and Immigration Services (USCIS) before the foreign national can apply for the visa stamp abroad at the U.S. Consulate or Embassy in their home country. Petition-based categories include H-1B, L-1 Individual (where the company does not hold a Blanket Approval for L-1s), and O-1. Consular-based categories do not require this step and the foreign national can complete the entire process through their local U.S. Consulate or Embassy. Consular-based categories include L-1 Blanket, TN for Canadians and Mexicans, E-3 for Australians, H-1B1 for Chileans and Singaporeans, E-1, and E-2.
Will I need to file a case for potential employees who live outside of the U.S.?
Yes.
What services are available to assist companies who have international offices with immigration issues?
Our law firm is well-equipped to assist such companies. Oftentimes, the best visa option here for such international assignments or transfers is the L-1 Intracompany Transferee visa.
What are the risks of non-compliance with immigration laws? How can my company ensure compliance?
- Fines
Substantial fines, ranging from $100 to $1,000 per hire, can be imposed for violating the Immigration Reform and Control Act (IRCA). - Prison time
Up to six months in prison for knowingly hiring an illegal worker, and up to 10 years for harboring an illegal worker. - Debarment from government contracts
An employer who fails to comply with immigration laws may be debarred from government contracts. - Back pay
A court may order an employer to pay back pay to an individual who was discriminated against. - Hiring order
A court may order an employer to hire an individual who was discriminated against.
Other penalties for non-compliance include:
- Being ordered to cease and desist from hiring unauthorized noncitizens
- Facing civil money penalties for failing to properly complete, retain, and/or make Forms I-9 available for inspection
Why should I work with a business immigration attorney?
We will help you to source foreign talent and expertise while maintaining strict compliance with the laws. We will also always make sure your foreign national employees have a positive experience.