Does your immigration team have a risk mitigation plan or support helping navigate programmatic concerns beyond individual cases?
While keeping up with the dynamic immigration policy and enforcement changes is good, if that is the primary focus of your People team the other fundamental areas of your immigration program can quickly become chaotic.
Another fundamental aspect of creating a more predictable immigration program is identifying and mitigating risk. Recruiting international employees brings with it several potential legal, financial, and cultural hazards, and you might consider adopting more preventative measures to avoid them.
Have You Considered All the Risks?
Requests for Evidence (RFEs)
If you participate consistently with immigration, then it is a struggle to avoid RFEs. On the path to becoming an industry veteran, you’ll become quite familiar with considerable time and extra effort in preparing an RFE response.
If you’re wondering how to address issues after you receive RFEs, like whether you submitted the ideal job description, it’s already too late. The U.S. Department of Labor (DOL) or U.S. Citizenship and Immigration Services (USCIS) will review the supplemental materials in relation to the initial information you sent, and your time might be better spent trying to understand how to prevent any discrepancies altogether. Your best approach might be trying to figure out how to prevent RFE's altogether.
Another potential risk is the DOL or USCIS outright denies your application. After your team members spend considerable time and effort finding a great candidate and preparing the application, a case denial is a serious blow to morale—and your budget.
Sometimes the easiest first visa to get isn’t the best one for the employee long-term. While some non-immigrant visas (NIV) have a quicker or higher chance of approval than immigrant visas (IV), they might ultimately be a bad fit if your company is looking to retain that employee long-term. Picking the wrong first visa can result in complex situations like re-entry which can greatly impact project timelines and disrupt the employee’s quality of life.
In some cases, it’s appropriate to consider an appeal. You may not be able to appeal a Labor Condition Application (LCA) the DOL denied, but you may have time to fix problems on the LCA before the H-1B filing window. If USCIS denied your I-129 application, you could file an appeal, which the Administrative Appeals Office will decide.
You’ll have to include additional evidence and make a case for a different decision during any appeal process. Unfortunately, the appeal process can take months or years and still may not bring about the desired result.
Government Audits and Consequences
The DOL, USCIS, and U.S. Immigration and Customs Enforcement (ICE) perform audits. USCIS sends auditors to conduct site visits and reviews, the DOL audits about one-third of PERM Labor Certifications, and ICE handles I-9 inspections. Some investigations are random, while others are targeted due to a specific concern.
Whatever the case may be, you’ll need to cooperate, allow site visits when necessary, and promptly provide documentation regarding your immigration applications and employees.
If you’ve managed your immigration program well, an audit is merely an inconvenience. But an audit also can lead to more serious consequences, such as:
- Accidental compliance exposure
- The requirement to pay back wages
- Debarment from the immigration program
Poor Talent Management
A risk that many organizations might not consider in addition to RFEs and compliance is how a chaotic immigration process could damage your talent management efforts.
You may attract and recruit international talent that isn’t right for your organization. A poor job description or inconsistent stakeholder training can lead you to hire someone who isn’t a perfect fit for the role. Or your team may find someone who checks off most of the boxes yet isn’t a good cultural addition.
Ultimately, poor talent management can lead to:
- Lost productivity
- High employee turnover
- Unhealthy and unhappy work culture
- A tarnished reputation among peers
Lost Time and Money
All of these risks come down to wasting time, effort, and money. When your company chooses to invest in international employees, you want the best possible return on your investment. You want your team members’ time spent recruiting, interviewing, and handling the application process to be worth it.
Begin to Address the Risks of International Recruiting
A fundamental flaw in a chaotic immigration program is failing to address these risks early on. But you can quickly change that. You can begin to document the specific issues your organization faces and take steps to address them before filing DOL and USCIS applications.
- Document the risks: What’s gone wrong? What are the hazards your stakeholders see most often, and how do they impact your organization and immigration program? Formalize your findings in writing.
- Learn more about RFEs: Mitigating many risks involves understanding how the USCIS adjudicates applications and uses RFEs. Take time to review your previous RFEs and employee surveys. Learn about common reasons for RFEs and how those apply to your program.
- Partner with immigration counsel: Consider consulting with your immigration provider about RFE and employee concerns, build collaborative plans to both address and resolve issues proactively.
- Brainstorm next steps: Identify concrete steps you can take to improve your immigration program, such as crafting immigration-ready job descriptions and establishing an application workflow. Create a timeline for implementing these strategies and track your progress.
Consider How to Gather and Use Your Data
As a chaotic immigration program, you likely might not have a comprehensive immigration platform that offers easy access to data and reports. At this moment, do your best to gather the information you can, including employee performance metrics and turnover. By combing through the data you can review whether you’re finding the best talent for your organization or falling short.
You also can use data and reports to review when you receive RFE requests, the basis for the RFEs, whether you’re able to obtain a visa after providing supporting evidence, and how long the process takes. By taking a data-driven approach, you can review key metrics (e.g. RFE rate, denial rates) to determine if your strategies are successful and pivot accordingly as you work towards building a less risky immigration program.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a Bridge-affiliated partner attorney or another qualified legal professional.