Friday , September 21, 2018

What Every Business Should Consider Before Extending an Offer to A Foreign National

Before extending an offer of employment, businesses go to a great deal of trouble to identify the right employee. The process includes defining the job, planning a recruiting strategy, reviewing credentials and applications, prescreening and interviewing candidates, as well as checking backgrounds and references—all in an effort to locate the best possible candidate.

 

But what if the ideal candidate happens to be a Foreign National requiring visa sponsorship? What then? Adopting certain “best practices” can help an employer determine whether to pursue such a candidate.

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First and foremost, an employer should review its employment application to ensure that it includes a question regarding whether the applicant is legally authorized to work in the U.S. without restriction. (Such a question should be carefully worded to ensure it is not discriminatory.) The response to this question will alert the employer as to whether the candidate requires visa sponsorship.

 

The application form should also include a warning that providing false information is grounds for immediate rejection or for rescission of a potential offer of employment. In the event the candidate indicates s/he does not require sponsorship when in fact s/he does, this provides the employer with an “out” on the basis that the candidate misrepresented critical information on the application.

 

Further, this should help avoid a potential issue as to whether the candidate was rejected or the offer rescinded on discriminatory grounds. Such termination grounds should be applied uniformly.

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Next, an employer will need to consider the candidate’s education, experience and immigration history as these are factors in determining appropriate visa options. When extending an offer, an employer should make it contingent on the candidate securing appropriate work authorization. In the event a visa application is unsuccessful, the employer is thereby not tied to the offer.

 

In some cases a candidate will be working for another employer pursuant to that employer’s sponsored temporary visa. The candidate should not resign from the current employment until the new employer has had an opportunity to obtain employment authorization for the candidate. This should help avoid a finding that the candidate violated his/her visa status by failing to continue to work for the authorized employer. An employer will need to (1) be flexible with the anticipated start date of employment due to fluctuating government processing times and (2) track the Foreign National’s visa validity dates to help ensure visa extension requests are timely filed.

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Next, if the goal is to employ the candidate full-time and indefinitely, an employer should consider what is involved with obtaining permanent residence (“a green card”) for the employee. An employer should have guidelines as to when it will and won’t sponsor for green cards and whether the company will pay all or part of the sponsorship costs (including costs for dependent family members’ applications).

 

An employer may also want to consider having a repayment agreement policy if sharing costs for the green card process, with the understanding that by law, fees and costs associated with certain petitions and applications may not be recouped from or paid by the sponsored foreign worker.

 

Although acquiring a temporary work visa may be a relatively easy process, an employment-based green card application is typically more challenging. In most instances, a test of the U.S. labor market is required and can only be approved if no “able, willing, qualified U.S. applicant” applied for the position.

 

An employer must be prepared to consider external factors that could affect such a test including recent industry and geographic layoffs. An employer must also consider how much time the candidate may remain on the temporary work permit and whether the business can support renewals of the work permit throughout the green card process.

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Despite the intricacies involved with temporary or permanent visa sponsorship, the decision to hire a foreign worker can be rewarding—both for the employer and the worker. Having the right policies and procedures in place can make all the difference.

 

The information contained in this article is not, nor is it intended to be, legal advice, nor does it create an attorney-client relationship. You should consult an attorney for advice regarding your individual situation.

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