On Jul 06 2007 by H. Ronald Klasko

Managing the Immigration Function – What the Human Resource Professional Should Expect from Outside Immigration Counsel

As an immigration attorney whose practice emphasizes representation of corporations hiring and transferring foreign nationals, I work regularly with human resource professionals at many companies.

Based on more than 25 years of experience in this field, I have compiled the following list of “best practices” that enable the human resource professional to manage the immigration and visa functions in the most seamless and effective manner possible. This article is adapted from a presentation that I previously made to the American Immigration Lawyers Association.

I. Be Responsive

This may be the most important practice that the HR professional has a right to expect from outside immigration counsel. Being responsive means being available when needed and being able to provide answers to questions. If the attorney does not know an answer, he should get the answer quickly. Always remember that if the HR professional is calling the attorney, probably someone else is calling her. She is under pressure and has to rely on counsel’s availability. It hurts the attorney’s reputation — and may ultimately hurt his chances of continuing representation — if an HR person’s answer to her superior is: “I called the lawyer, and he hasn’t called me back.”

II. Make Their Lives Easier

It is helpful to the HR professional to mechanize the immigration function, so that it is not necessary to create the wheel on each case. Examples:

A. The attorney should create standard form questionnaires with lists of documents required, so that the HR person can get all the information and documents required from the start. Make questionnaires available electronically, so that employees overseas can download, complete, and return them without faxing or mailing. This enables the attorney to work quickly and enables the HR person to avoid the necessity to request further information or documents, which creates delays and sometimes embarrassment or dissatisfaction.

B. The attorney should create Desk References to which the HR professional can refer on an ongoing basis to deal with issues as they arise. Examples of Desk References might include one for I-9 procedures; one for labor condition application procedures; one for labor certification application procedures.

C. The attorney should create handouts for HR professionals to give to alien employees to answer frequently asked questions or to prevent frequently recurring problems. For example, it is helpful to prepare a form letter to be given by the HR person to alien employees regarding travel in and out of the United States, covering issues such as visa issuance, airport inspections and proper dates on I-94 cards.

D. The attorney should create status report forms to keep the HR person constantly updated on the status of all alien employees. These forms should include all of the myriad of expiration dates that allow for advance planning, such as expiration dates of passports, visas, I-94 cards, I-797s, LCAs (and the same dates for spouses and children). These status reports should be accessible electronically through the lawyer’s web page.

E. The attorney, with the HR professional, should develop a corporate policy manual for immigration-related matters. Such a manual could include coverage of issues such as when the company will apply for permanent residence status for an employee; what questions are appropriate to ask at interviews; when a company will apply for H-1B status for a foreign student; and when and by whom I-9s will be completed.

III. Work Quickly, and Avoid Emergencies

Quick (and accurate) turnover is critical to the HR professional. It is incumbent upon the immigration attorney to have enough time (and/or enough staff) to ensure that the company’s cases will be worked on promptly. It is critical to ascertain from the beginning the proposed arrival date of an alien employee. If the attorney believes that there will be any possible problem in accomplishing the expected arrival date, it is incumbent upon the attorney to advise the company up front. This enables the HR person to (in turn) advise necessary departments or operations people, so that they can plan accordingly. Failure to do this up front can result in the HR person promising dates that cannot be met, which makes the HR person look bad to his superiors. If the HR professional looks bad often enough, it is not that difficult to find other immigration counsel.

A corollary of this premise is to do everything possible to avoid deadlines and emergencies. Deadlines and emergencies create tensions within the company between the HR department and the operations departments, which is likely to create tensions between the attorney and the HR department. HR people generally have many things to do other than immigration matters. They do not want to hear from the attorney that, because of counsel’s delays, she is sending them materials that require them to drop everything else and work on the immigration matter immediately. The attorney can help avoid these occurrences — at least on extension matters — by initiating inquiries with the HR person months in advance of the need for an extension as to whether the company wishes to continue the individual’s employment, apply for permanent resident status, etc.

IV. Educate

Some HR professionals are very knowledgeable of immigration law issues, and others are not — sometimes by choice. Invariably, however, they appreciate being advised of some substantive immigration law and specific issues in cases the attorney is handling. This enables them to speak intelligently with operations people in the company regarding what can and cannot be accomplished and regarding issues that may arise that could affect the chances of success or promptness of a corporate hire or corporate transfer.

As a corollary, it is important to advise the HR person of the company’s exposure involved in taking various actions. This includes I-9 and employer sanctions exposure, exposures in the labor condition application process, exposures involved in the labor certification application procedures and discrimination issues.

Two specific education vehicles are worth considering:

  • Seminars or training sessions for both the HR person and any operations people who will be involved in the immigration process; and
  • Regularly advising the HR person of new developments in the law, through regular newsletters or notices advising of new developments.

V. Be Creative

Many immigration lawyers can handle the routine cases. Often the distinction that separates the routine immigration lawyer from the superstar in the mind of the HR professional is the ability to come up with creative solutions to difficult or seemingly impossible problems. While it is important to advise the HR person of issues and problems inherent in a certain course of action, it is not enough to just do that. It is important to go the extra step and provide creative recommendations for how to solve the difficult issues that the attorney has highlighted. HR persons have often expressed frustration with counsel who are great at spotting issues and simply concluding that a proposed course of action cannot be accomplished.

VI. Create a “Team” Atmosphere

The immigration lawyer and the HR representative have to be a team in managing the immigration function for the company. The immigration lawyer should let the HR person know that: “Your problem is my problem.”

Part of the team concept includes introducing the HR professional to anyone else who will become part of the team, such as other lawyers, paralegals, or secretaries who might be in contact with the company or might work on the company’s cases.

Visiting the company helps to create this team atmosphere. It shows the interest of the immigration lawyer in learning more about the company; it helps to create a more personalized relationship with the HR person; and it provides the immigration lawyer with an opportunity to introduce the HR person to other members of his staff who will be dealing with the company.

Another part of the team atmosphere is to “audit” how the team is doing. It is a good idea to periodically ask the HR person how she thinks the attorney is doing and how he can improve his service. Also, the immigration lawyer should request input as to the relationship between the HR person and the other lawyers, paralegals or secretaries who form a part of the team.

Another way to foster the team atmosphere is to go the extra step beyond what is expected. Often, this can just be a small thing, such as making the extra follow-up call after the case is done and after the employee has arrived and commenced employment just to check if everything went fine, if there are any loose ends, and if there are any questions that can be answered.

VII. Learn the Rules, and Follow the Rules

Every company and every HR professional have their own rules and procedures for dealing with the immigration function. The immigration lawyer should not be in a position to dictate the way that the immigration function should be handled. Flexibility is the catch word — what works well for some companies may not work well for others.

Examples of rules and procedures that vary from company to company include:

  • Does the HR professional want the attorney to contact the employee directly?
  • Does the HR professional want the attorney to contact the supervisor or technical person who can provide detailed position information, or does the HR person wish to be the intermediary?
  • Does the HR professional want to place any required advertisement through the company’s own sources, or does he want the attorney to place the advertisement on behalf of the company?

VIII. Keep the HR Person in the Loop

HR professionals do not like surprises. They do like to sound intelligent when asked by someone within the company regarding the status of an immigration case. There are several cardinal rules to make certain that the HR person is always “in the loop:”

  • Provide copies of all correspondence and e-mails — and appropriate internal memoranda — to the HR person;
  • Immediately advise the HR person of any problems or any issues that may render advice the attorney previously gave no longer valid;
  • Periodically, though telephone calls, correspondence or meetings, review the status of immigration matters being handled for the company.

A related issue involves the relationship of the immigration lawyer with the alien employee. Although ethical issues arising from the dual nature of the attorney’s representation of the company and the foreign national employee are beyond the scope of this article, it is important to emphasize that HR persons usually do not like to receive critical information for the first time from the alien. Rather, they usually expect to hear such information from the immigration lawyer first — before the immigration lawyer contacts the alien employee.

IX. Represent the Company

Immigration attorneys have ethical obligations to their clients — but where the attorney is helping the company and the employee at the same time, the potential for dual representation conflicts exists.

Lawyers should make clear that they represent the company, so that employees know the information they provide the attorney will be kept confidential from outside parties, but not from the company. The company may want to have the lawyer obtain a signed statement from each employee to that effect.

X. Develop and Keep a Personal Relationship

Sometimes it is not enough for the attorney just to be good. The attorney should never assume that, because the attorney is dealing with a company, the relationship with the HR representative is not important. The contrary is the case. Because of the frequent and ongoing nature of the relationship between the immigration attorney and the HR representative, a personal relationship can often help when a difficult problem arises. Although the nature of the relationship will obviously vary depending upon the individual HR representative involved, most appreciate sharing social conversation, receiving a lunch invitation, receiving a compliment — both to their face and to others within the company.

This personal relationship can go a long way if the HR person goes to a different company. Sometimes, the more developed the relationship between the immigration lawyer and the HR representative, the better the chances that the HR representative will take the extra step to seek out the immigration lawyer to represent the new company.

At the same time, it is important for the immigration lawyer to get introduced to others within the company so as to “institutionalize” the relationship. Again, in the eventuality that the particular HR representative were to leave the company, the more people that the immigration lawyer knows at the company and the more institutionalized the relationship, the greater the chance that the change in HR person will not result in a change in immigration representation.

Conclusion

The immigration function is characterized by delays and backlogs in government adjudications. However, with proper planning and follow up between the immigration attorney and the HR professional acting as a team, the company can achieve its goal of effectuating consistent, predictable and expeditious transferring and hiring of foreign national employees.