5 Tough Employment Immigration Scenarios and How to Resolve Them

​A panel of seasoned immigration practitioners explained several challenging but all-too-typical visa conundrums yesterday at the Council for Global Immigration's 2017 Symposium.

Here are five of the most vexing. 

1. It is mid-May, and the company has not received a receipt from U.S. Citizenship and Immigration Services (USCIS) that the application for a cap-subject H-1B visa was received. The H-1B cap lottery was held in April, and the business unit is concerned about the H-1B visa worker's future at the company.

Kristin Faison, SHRM-CP, an HR global mobility consultant at AOL based in Washington, D.C., stressed that preparation for this kind of event should take place well ahead of the lottery. "H-1B cap season is essentially all year," she said. "I would have the conversation in January, with HR and the business partners, identify who is at risk and figure out what the options are for workers not receiving a visa."

Rebecca Schechter, an attorney in the McLean, Va., office of Greenberg Traurig, said she explains to the hiring manager that because of the lottery, there's no way to prioritize employees. "We talk about different options and other ways to keep the worker in the U.S.," she said.

A couple of these include using Optional Practical Training or figuring out if the worker can work for the company abroad.

"[Working abroad is] costly, but if the person is considered indispensable, it could be worth it."

Another solution is applying for H-4 or L-2 employment authorization if the worker's spouse has a work visa, said Jessica Lee Young, assistant general counsel at Capgemini, a consulting and outsourcing provider based in Paris. She added that if May goes by and there's still no receipt from USCIS, have an attorney file a request with the agency to make sure the application was not lost. 

2. The foreign worker tells HR or the immigration team that he or she doesn't need an L-1 visa to travel to the U.S. for upcoming business, and that he or she can conduct all business travel using the B-1 visa, even though the worker intends to do actual project work while in the U.S.

"Try to get at exactly what they will be doing," Schechter said. "You need details. What's business and what's work can be a grey area, but the government is getting stricter on this. It shouldn't be an issue if they are eligible for the L."

Faison said that it is important to explain to the employee and the employee's manager that intent is critical when it comes to determining visa type. "The letter of the law must be followed, because we don't want to put the employee, the company or the immigration program in danger of liability," she said.

Faison partners closely with AOL's travel team, and gets a list of all the company's business travelers across the world periodically in order to check that they do have the proper visa. "When employees book their travel, they are reminded to reach out to the immigration team to ensure that they have the proper visa type." 

3.  The employee has a master's degree and is insisting that she should be sponsored in the EB-2 category for a green card, in order to allow her spouse to find work faster, instead of the broader EB-3 category, which has a longer wait time due to backlogs.

"This happens all the time, at various stages of the PERM [employment-based green card] process," Faison said. "It comes down to education and explaining that filing for an EB-2 prompts a two-prong test. The role must require an advanced degree, and the person needs to possess the degree or a bachelor's degree and the requisite work experience."

She added that for Indian and Chinese nationals, their biggest hurdle in the process is getting their priority date and their place in the green card line. "It can be tough when they realize what the backlogs are for their country," she said. "I tell them that if, in the future, they move into a role that requires an EB-2 filing, their priority date and place in line is theirs and can be ported to the new filing."

Schechter said that employers need to refrain from tailoring PERM filings to individual employees. "It's important to remain consistent if you file a lot of green card cases," she said. "You can't file for a software analyst needing a master's degree and five years' experience and then another one later that only requires a bachelor's degree. Being consistent is really important for the company's reputation and for its relationship with USCIS." 

4. The company is working on a PERM application for an employee but is not legitimately able to disqualify a U.S. worker who applied for the position, which is one of the labor certification recruitment requirements in the PERM process.

The law requires employers to honestly confirm that no qualified U.S. workers were interested in the job. The employer may disqualify applicants only for lawful, job-related reasons, such as not possessing the required education or experience.

"This is a really difficult conversation to have," Schechter said. "Sometimes you can talk it out with a recruiter and find a way to disqualify the applicant to try to save the PERM. But if you can't find a way to disqualify the applicant, the PERM must stop."

Faison tells the employee "that this doesn't mean that we can't sponsor him or her for a green card, but simply that we can't move forward at this point in time. Ensure the employee knows they are still valued, but let them know that the PERM process regulations must be followed."

Young added that managers may push back and say that the job isn't really open, but is meant to be for the PERM employee. "If you are nominating a person for PERM, it means that there is an open position, and if a U.S. worker is ready and willing to do the job, you need to offer them the job," she said. "Ultimately, getting a green card is a privilege, not a right."

Schechter reminded employers that workers laid off within the past six months who held the same or similar positions and who worked in the same area where the foreign worker is intended to work must be notified of the available positions. 

5. An employee on a work visa gets arrested.

"If it's minor, the employee might take care of it themselves," Young said. "If the worker is stuck in jail and will have to serve time, obviously, they have to be taken off payroll and the company couldn't keep them on a work visa anymore, either." She advised companies to refer the worker's family to a criminal attorney and an immigration attorney. A work visa can be changed to a tourist visa  to serve out a criminal sentence, she said.

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