Tips for Managing Green Card Sponsorship Policies

​An organization's employment green card policy is a top consideration for foreign national candidates considering their career choices.

Many companies that sponsor green cards for their foreign national employees, such as professional services firm Deloitte, have green card policies they can use as a recruitment tool.

Other companies are rethinking whether they will sponsor workers for permanent residence, considering the current challenges they face in getting temporary worker visas and extensions approved, said William Coffman, special counsel in the Boston office of law firm Mintz Levin. "Maybe they're doing it sooner, or developing policies if they don't have them, or changing policies," he told attendees of the recent Council for Global Immigration 2018 Symposium.

[SHRM and CFGI eLearning: Hiring Foreign Nationals: Immigrant Visas]

Zarina Godhrawala, manager of global mobility and immigration at Deloitte, explained that her firm has put a lot of work into its green card policy to attract and retain talent. But she added that her team can diverge from the policy and follow additional guidelines depending on business needs.

"Not all policies will be the same for all companies," she said. "It depends on the skills you are hiring for."

Global biotechnology firm Qiagen does not have a published green card policy but instead follows an internal standard operating procedure, said Derry Velardi, associate director of HR for the company.

"You have to have a framework for consistency, but in this climate, you also must be agile, because the law's changing every week," said Derek Quashie, a senior manager in the immigration practice at PwC Law, in Toronto.

Whether a company has an official policy or not, employers will want to be clear about several key areas of the sponsorship process—requirements, costs and repayment agreements.

Eligibility Requirements

One of the first factors to consider is employee eligibility. The green card process can be started immediately upon hire or based on a certain tenure. Both Deloitte and Qiagen require a tenure period of one year and good performance before beginning the green card process for an employee.

Factors to consider include the employee's current visa status as well as the country of birth, which will significantly impact the length of the process. Depending on the visa category, foreign nationals from India can be stuck in the green card backlog for decades.

Cost-Sharing

Employers also need to decide who will pay for the process beyond what is required of the sponsoring organization. This can be a major factor in whether the worker is willing to go through the green card process. 

Employers can pay for the entire process or ask employees to cover the costs of the visa petition and adjustment-of-status portions of the process, including filing fees, medical tests and green card applications for dependents.

"The company is responsible for all costs related to the labor-certification part of the process with the Department of Labor (DOL)," Coffman said. "The DOL takes this very seriously and has punished companies for noncompliance."

Both Deloitte and Qiagen pay for most aspects of the process, including medical exams, according to Godhrawala and Velardi. "Because we use this as a recruitment tool, we tend to provide the support our employees and their dependents need," Godhrawala said.

Paying for premium processing is another option. "I have clients who will only pay for premium processing if there is a real business necessity," Coffman said.

Repayment Agreements

Some employers require employees in the green card process to stay with the company for a certain period of time or repay the costs that can be legally borne by the employee if they leave before the end of that period. When used, these clawbacks are typically applied to recoup some of the costs for expenses when workers leave the company after getting their green card. However, the law does not require a certain length of time that green card recipients must continue working with the sponsoring employer after receiving their green card.

Even before the worker receives a green card, regulations allow the worker to change employers. If an individual's adjustment-of-status application has been filed and is 180 days old, that person can change employers under the American Competitiveness in the 21st Century Act.

"We do not have a policy for this, because it happens so rarely," Velardi said.

Deloitte doesn't have a repayment-agreement policy either.

"But what I've seen at past companies I've worked for was that going through the efforts at collection was not worth it," Godhrawala said.

Quashie said he's found repayment agreements structured in a reasonable way to be helpful in mitigating employees' desire to leave. "I kind of liken it to a noncompete, where I'm not sure it can actually be enforced," he said. "But I think more people that sign them will try to avoid leaving during the designated period than will decide to put the money up and leave."