Managing Immigration Sponsorship: A Flexible Policy Is the Wisest Strategy

Updated January 23, 2023

A flexible immigration sponsorship policy serves an employer and its foreign national workers by balancing business-side considerations and individual case strategy and needs. Establishing a clear policy also helps to manage stakeholder expectations and can support employee retention. 

Key considerations in developing an effective and efficient immigration sponsorship policy

Every company's hiring objective is to identify and retain the best-qualified candidates. In our increasingly technology-driven economy, top-tier candidates are often foreign nationals educated in the United States, requiring visa sponsorship as they enter the workforce. Whether your company is a growing start-up with a handful of employees or a long-established firm employing hundreds, it is inevitable in today's market that you will have to navigate the maze of rules and regulations surrounding the employment and sponsorship of foreign national employees.

Hiring and employing a foreign national, even temporarily, requires a commitment of your company's administrative time and financial resources to successfully navigate the complex immigration system, including planning for near-term temporary work authorization and long-term strategy for green card sponsorship. Further, immigration sponsorship can be a powerful incentive and retention tool that may help to draw and retain talent.

Accordingly, efficient and cost-effective management of an immigration sponsorship requires a flexible company policy that accounts for shifts in the legal landscape, fluctuating processing times, economic volatility, and foreign national employee needs and hopes.

In defining an effective immigration sponsorship policy, you should consider the following questions.

1. Who will pay for immigration sponsorship fees and expenses?

The immigration sponsorship process can be costly. Most foreign nationals requiring sponsorship from an employer require both a temporary “nonimmigrant” visa, which provides work authorization and status near-term, and a permanent “immigrant” visa, which provides a basis for permanent residency (Green Card) in the United States. Foreign nationals subject to extensive backlogs for immigrant visas, including those born in India and China, may require multiple renewals of their nonimmigrant visas while awaiting a green card, while foreign nationals from other parts of the world may move more quickly to permanent residency, requiring a shorter overall period of nonimmigrant sponsorship.

Employers are generally responsible for covering the costs associated with sponsorship, with limited exceptions. Having a policy that clearly establishes which party will pay for certain immigration sponsorship costs will help you to remain in compliance with immigration regulations, manage expectations with your employees, and remove the possibility of claims of unequal or unfair treatment.

While some nonimmigrant and immigrant visa processing costs — such as certain fees and expenses related to H-1B and PERM filings — must be paid by the employer under current U.S. Department of Homeland Security (DHS) and U.S. Department of Labor (DOL) regulations, others can be passed on to foreign national employees at the sponsoring employer’s discretion. Although there are no set practices across companies or industries, it is most common for employers to cover the costs of the nonimmigrant visa sponsorship process in their entirety for a foreign national employee and to split certain costs of the immigrant visa sponsorship process with the foreign national employees.

For example, in the nonimmigrant visa context, an employer must pay U.S. Citizenship and Immigration Services (USCIS) filing fees currently totaling $1700-$2500+ for an H-1B petition filed with regular processing, as well as legal fees. Employers also typically cover the costs of USCIS’ premium processing services (currently $2500) where a business need calls for expedited processing. Increasingly, employers are passing other costs on to the sponsored foreign national employee, including requiring them to pay for premium processing in the absence of a business need or requiring that they be responsible for any costs related to visa sponsorship for their dependent family members.

In the immigrant visa context — where costs can easily total $10,000-20,000+ for the PERM, I-140 Immigrant Visa Petition, and Adjustment of Status (Green Card) processes — it is common for employers to split the costs of the Green Card sponsorship process with the employee on some basis. Of these immigrant visa costs, employers are only required to pay the costs related to the PERM process, though most employers commonly cover costs associated with an I-140 Immigrant Visa Petition as well. Many employers require the sponsored foreign national employee to pay the costs associated with the remaining steps of the green card process, including the employee’s own Adjustment of Status (Green Card) application and/or the employee’s dependent family members’ applications. In situations where the employer pays for most or all of the Green Card sponsorship costs, it is also common for the employer to have the right to "claw-back" a limited portion of the costs if the employee leaves his or her employment within a set period after filing.

More specific questions to consider regarding immigration sponsorship costs:

• Under what circumstances will the company pay for USCIS premium processing?
• Will the company cover the costs of an employee’s dependent family members’ nonimmigrant visa processing? Dependent spouse’s nonimmigrant work authorization?
• What internal cost approvals are required for various case types?
• Will the company cover green card application costs?
• Will the company implement any “claw-back” provisions for immigration sponsorship costs?

2. When is Green Card sponsorship offered?

To maintain equity among foreign national employees, support foreign national employee retention, and ensure that foreign national employees do not lose immigration status or work authorization, it is important to establish clearly defined benchmarks for when the company will initiate Green Card sponsorship.

As noted above, the costs associated with immigrant visa processing are substantially greater than temporary nonimmigrant visa sponsorship, and ongoing temporary visa sponsorship is required throughout the immigrant visa process to maintain work authorization and valid status in the United States, adding to total per employee costs. The immigrant visa process is lengthy and complex, requiring significant input from foreign national employees, their managers, and human resources and global mobility staff internally. To ensure that these factors are accounted for, company policy should both establish a benchmark for when the company will consider an immigration sponsorship and confirm that immigrant visa sponsorship, timing, and strategy is ultimately at the company’s discretion. An effective immigration sponsorship policy should make it clear that the company will be in charge of how and when the sponsorship proceeds and should identify the stakeholders with the authority to manage the sponsorship process from the outset.

More specific questions to consider regarding green card sponsorhip:

• How long should an employee be with the company before green card sponsorship is offered? 6 months? 1 year?
• Must a foreign national employee be sponsored in any specific nonimmigrant status before green card sponsorship is offered? Will the company sponsor students for green cards?
• What internal cost or employee performance approvals are needed before beginning the green card process?
• How will the company learn about and handle job changes, including promotions and employee relocation?

Components of a flexible immigration policy and practical examples

While it is important to clearly define your company's policy and to set appropriate benchmarks, it is also important to recognize that in practice, immigration sponsorship will require flexibility, and the company will need to make exceptions to the established policies. Immigration sponsorship rarely runs perfectly. There are myriad factors from the business side that influence the decision-making process, such as budget constraints, operational changes, corporate reorganizations, and layoffs. From the legal side, there are the ever-changing immigration laws, procedures, and processing times, as well as major fluctuations in the availability of employment-based immigrant visas that impact the overall sponsorship timeline. Your policy should include language expressly reserving the company's right to make exceptions and can even address some of the circumstances that may warrant exception.

A flexible policy allows for and supports immigration sponsorship strategies that serve the company and a foreign national worker. Consider the following examples.

• Flexible timing in response to long DOL and USCIS processing times
  As of December 2022, DOL processing times for PERM Prevailing Wage Determinations and PERM Processing had reached an all-time high of ~200 and ~255 days respectively. With these two steps of the PERM process consistently taking 6-8+ months each, the overall PERM timeline is now averaging a minimum of 18-24 months. In practice, this means employers must consider beginning the immigrant visa sponsorship process earlier than ever before. In practice, this has the greatest impact on foreign national workers who need to reach certain milestones in the green card process in order to extend their nonimmigrant visa status or otherwise maintain work authorization and status in the United States.
  
  Practical example: A new hire foreign national employee born in India has already been in H-1B status for 4 years of the authorized 6-year maximum period. The foreign national’s prior employer did not secure a PERM and I-140 approval for them, leaving only 2 years of H-1B time available when transferring the H-1B. To avoid or minimize a gap in employment authorization and status, this foreign national employee will require a PERM be started at the time of onboarding, even if company policy typically requires 6 months of service before Green Card sponsorship.
• Flexible assessment of immigrant visa sponsorship risks vs. benefits
  Given the unpredictability of certain immigration sponsorship options, including the annual H-1B lottery, some foreign national employees may benefit from creative strategies that provide backup and alternate options for work authorization and immigration status. This can include balancing the risks of early Green Card sponsorship with the benefits of employee retention and long-term work authorized status. Typically, sponsoring a foreign national employee early in their career can mean a company is testing the labor market for an entry-level position, which can be risky, as it increases the chances of identifying qualified U.S. worker applicants. Additionally, sponsoring a foreign national employee who is early in their career may mean that their performance could be untested, or that they will move on from the company sooner than expected. On balance, however, exploring an unconventional strategy like early Green card sponsorship may still be a worthwhile endeavor if it means that a promising foreign national employee can be retained.
  
  Practical example: A foreign national employee born in France is working in F-1 student status with Post-Completion OPT and is eligible for a STEM OPT Extension. The company entered the foreign national in the most recent H-1B lottery, but the foreign national was not selected. Because foreign nationals born in France are not subject to immigrant visa backlogs, it is possible to move through the PERM, I-140, and Adjustment of Status processes within the available 3-year OPT/STEM OPT period. The company can choose to begin Green Card sponsorship while the employee is in F-1 status in the hopes of advancing the process far enough to get the employee work authorization based on the pending Green Card application before the STEM OPT period ends. Pursuing a Green Card for a foreign national in F-1 status will likely mean that the company is advertising an entry level position in the PERM process, and the labor market testing for this type of position may not be successful. The process would also require the foreign national to remain in the United States for the multi-year duration of the immigration sponsorship process because of the nonimmigrant intent required in F-1 status. However, if the Green Card process is successful, it can protect the foreign national employee’s status and work authorization in the long term if they are not selected in future H-1B lotteries, allowing them to remain in the U.S. and continue working.
• Flexible support for Family-Based and Self-Sponsorship immigration options
  In some cases, a foreign national employee may have immigration options separate from their employment, such as a family-based or self-sponsored petition. When these options are available, it can be in the company and the foreign national’s best interests to pursue them in addition to, or in lieu of, an employment-based immigrant visa. This can include the company covering costs of a family-based petition, which tend to offer significant savings over a PERM-based immigrant visa process. Alternative immigration options may also allow a company to plan around upcoming corporate restructuring or layoffs while supporting and retaining employees.
  
  Practical example: A company has kicked off an employment-based immigrant visa process for a foreign national employee, which is in its early stages when the sponsored employee marries a U.S. citizen. The foreign national employee and their spouse are interested in pursuing a marriage-based green card, but do not want to do so if the company is already offering sponsorship. Instead of pursuing the employment-based process, the company could offer to cover the costs of a marriage-based filing, including a claw-back agreement for sponsorship costs. This shift in strategy could save thousands of dollars and months (or years!) in processing time.
  
  Practical example: A growing startup company employs an internationally renowned foreign national in a high-level research position. The company is working to position itself for acquisition or restructuring to further support its growth. The sponsored foreign national employee has an extensive publication record and created the technology that underlies the company’s product offerings. The company wants to retain the foreign national employee, while protecting the employee’s immigration status if the company’s structure changes. Instead of petitioning for the employee in the EB-1A Extraordinary Ability category or the EB-2 National Interest Waiver category, the company can instead support the foreign national employee’s self-petition in one of these categories, subject to a claw-back agreement. This would support the foreign national’s green card process, regardless of changes to their employment with the company.
• Flexibility to accommodate for dependent needs
  While a company’s primary concern focuses on maintaining their employee’s immigration status and work authorization, a sponsored foreign national employee may also be concerned with ensuring that their dependent family members’ status is also protected and that the status affords the benefits, such as spousal work authorization, that are important to their family. In the nonimmigrant context, only certain statuses allow a dependent spouse to have work authorization, and some employees may be interested in one status over another for this reason. In the immigrant context, a spouse can always be included as derivatives of a sponsored foreign national employee’s green card process. However, a foreign national’s children can only be dependents of their parent until they turn 21 years old. Consequently, a foreign national employee may be concerned with protecting their child’s status to include them in Green Card sponsorship if possible. With limited exception, an immigrant visa must be available per the Visa Bulletin and a green card application for a dependent child must filed before the child’s 21st birthday in order for them to be included as a derivative of their parent’s green card process. This requirement may drive some foreign national employees to request Green Card sponsorship on a timeline that will account for this requirement, particularly if they face a backlog in immigrant visa availability. Accommodating these requests when feasible may be a great retention incentive for employees.
  
  Practical example: The company’s immigration policy typically requires 2 years of service before Green Card Sponsorship is offered. A high-performing sponsored foreign national employee with a current priority date whose child is 17 at the time of onboarding requests that the company begin the Green Card process after only 1 year of service. Offering this sponsorship a year earlier than policy dictates would allow the foreign national employee’s child to be eligible for a Green Card, keeping the family in status together in the United States.

Conclusion

A thoughtful and adaptive sponsorship policy is good for both the company and the sponsored immigrant. Good will, enhanced employee loyalty, lower employee stress, reduced work distraction and increased productivity all flow from it if wisely applied.

Victoria Morte also contributed to this article. If you have questions about immigration sponsorship, please contact Attorney Morte or Attorney Gallini or any member of our immigration team.