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HR practitioners new to immigration matters must first understand the two main types of visas—employment and business-based—and the processes involved in securing both, said Daniel Williamson, a partner with immigration law firm Fragomen, at the Society for Human Resource Management 2016 Annual Conference & Exposition in Washington, D.C.
"Movement across borders generally requires a visa," Williamson said. But knowing whether a business visa or an immigration visa is required for a certain employee is a matter of law and is best determined by someone with legal expertise. To begin a dialogue with an attorney, Williamson told attendees that providing "a resume, a job description and the country of citizenship are enough for a lawyer to begin strategizing."
Contrary to popular belief, "the duration of [a business] trip isn't always the controlling factor" as to whether a visa is needed, he said. Williamson cautioned attendees that visas can be required even when a trip lasts for only one week. At the outset, employers must understand requirements in place because they may impact business strategy.
He gave the example of someone entering the U.S. for one week of training. The need for a visa in this situation may escape the attention of the HR department because payroll isn't impacted and there's no relocation. But if the proper due diligence isn't performed, the employee could be stranded at the airport or sent back to his or her home country, or the employer could be fined for immigration fraud. So, if it understands the complications that immigration may present, the company may consider offering virtual training.
Williamson also instructed HR practitioners to distinguish between statutes and operational guidelines when formulating an immigration strategy. "You have to recognize the difference between law and practice," Williamson said. Knowing how long it takes to get a U.S. business visa, for example, is a matter of practice and can't be found in any law because it's a function of demand, country of origin and many other case-specific facts.
Williamson explained that once the correct visa type or category is determined, it's critical that HR help to set expectations with the employee and the hiring manager. "HR should emphasize three steps for any immigrant visa: preparation time, adjudication time and government decision-making." Clearly communicating these steps helps to avoid situations where employees and managers grow frustrated and dread having to deal with immigration.
Lastly, Williamson expressed the importance of understanding different regulating agencies that play a part in the immigration process, particularly for inbound U.S. immigration. Customs and Border Protection, for example, deals with huge volumes of cases every day and often lacks the time or resources to second-guess or investigate the details of work visas.
By contrast, Williamson explained, U.S. Citizenship and Immigration Services (USCIS) "has a more sophisticated body of knowledge [regarding immigration], and this expertise is mirrored by staff in overseas consulates." Even so, employers may see significant differences in visa petition processing stateside as compared with overseas.
Williamson illustrated this point by noting that only 1 percent to 2 percent of L-1B visas (for intracompany transferees with specialty knowledge) are challenged by consular processors, while up to 55 percent of petitions processed by domestic USCIS case officers are challenged.
The final agency playing a role in immigration is Immigration and Customs Enforcement (ICE). Despite its fearsome reputation, Williamson emphasized that "ICE mainly conducts site visits to detect illegal immigration and also handles immigrants with criminal issues." Employers that follow the rules should not, therefore, have many dealings with ICE.
For employers or HR practitioners just starting to consider visa sponsorship as a talent strategy, Williamson recommended partnering with a reputable law firm or reviewing information on U.S. government agency websites as a first step to understanding the landscape.
Amy Gulati, SHRM-SCP, is a freelance writer based in the Washington, D.C., area.
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