Immigration Counsel and HR Departments

The genesis of much of the successful work produced by our law firm originates from a company’s human resources (HR) director or department. A company’s HR department may have a prospective employee, or a current employee, for whom an immigration matter has arisen that must be resolved in order to begin or continue lawful employment. Typically, an HR associate or director asks us what information we need to build a winning case before U.S. Citizenship and Immigration Services (USCIS).

A client’s HR department will call or email our firm asking whether a prospective (or current) employee possesses the correct work authorization documentation. Do they have the correct non-immigrant visa status in place? There is an alphabet soup of visa options – such as H, E, L, O, P, TN, etc. – available to foreign nationals seeking authorization to work in the U.S. Or, do they have a currently valid employment authorization document (EAD)? An EAD is commonly issued to persons who are in the process of applying for U.S. lawful permanent resident status, more commonly known as “green card” status. There are other situations whereby a foreign national may obtain an EAD.

When initially analyzing any potential employment-based visa matter, immigration attorneys consider three vital components:

The Employer

At a minimum, USCIS is typically concerned with two issues regarding a prospective sponsoring employer:

  • the legitimacy of the employer’s business operations; and
  • its ability to pay whatever the minimum wage or salary may be required for a particular position.

The Position

USCIS is also focused upon the position offered:

  • Is this a specialty occupation job or a professional job?
  • Considering the particular industry at issue, what is the minimum education and work experience required?
  • Are there other specific requirements for this position such as licenses, languages, credentialing, security clearances or certifications?
  • Does this position customarily exist for similar employers in this industry?

The Employee

  • If there is a minimum of education and/or work experience required for the position, has the individual met it/them?
  • Has the individual met any licensure, language, etc. minimum requirements?
  • Is the individual in the country legally, and if yes:
    Is their immigration status adequate for the position, or can it be changed easily to a visa status that will authorize employment for this position?
  • Will they have to travel outside of the country in order to make any necessary visa status change?
  • Does the individual have any derogatory immigration or criminal history?
  • Does the individual have any immediate family who wish to accompany him/her in the U.S.?

Generally, these three components are the focus of our initial analysis and a helpful starting point for our HR colleagues. Every case is unique, no matter how it may appear similar to another. From the outset, it is important for HR and immigration counsel to work together – asking the right questions and procuring the vital documentation to properly analyze a matter and develop a winning strategy.

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