The Details are Critical When Your Sponsored Workers Leave the Country

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Dec 10, 2018

With holidays already upon us and many coming up over the next several weeks, organizations with foreign national workers are likely dealing with travel requests from their sponsored employees who are planning international vacations. Especially now, in this time of immigration uncertainty there are a few items to keep top of mind to minimize travel delays and ensure your employees will be able to return to the US without complication.

When an employee has an employer-sponsored visa (like the H-1B or TN), maintaining work eligibility is dependent on the employee being continuously employed in the role outlined in the visa application. If that employment lapses or changes, the visa could be deemed invalid at the border when the employee is trying to return to the US.

This means that the employee may be denied entry and / or the ability to work in the US without the employer first filing a new visa application or amendment. This could potentially leave the employee stuck outside the US for many months.

The good news is that, with proper documentation, it’s possible to both offer your employees time off to spend with their families and ensure they’ll be able to maintain their visa status when they return.

Minimizing the risks

So what steps should be taken before your employees travel? It’s a best practice to consult your attorney before your employees leave the country, but in the meantime, here are some important steps to take, along with documents that both you and your employee should have on hand:

  • Determine whether the employee’s position has changed. Material changes in employment (for example, changes in title, job description, work location, or salary) may require an amendment to be filed with USCIS to keep a sponsored employee’s status valid and maintain their ability to work without interruption. If an employee’s role has changed, this important compliance issue should be discussed with your attorney prior to the employee’s departure. It’s a best practice to use technology to monitor changes in employment to ensure amendments are filed in a timely fashion to remain compliant and prevent unplanned interruptions to your employee’s scheduled personal time.
  • Create a dated letter from the employer. This will ideally come from a direct manager or head of HR, indicating that the employee is still employed by the organization, but is on vacation. The employee should travel with the original copy of this letter. It should clarify that the employee remains employed in the same sponsored position and has an expectation of ongoing employment upon their return.
  • Travel with the employee’s most recent visa approval notice. The employee should travel with a copy of the most recently issued visa approval notice to demonstrate they have the ability to lawfully return to the US. Has there been an acquisition or merger? If so, your attorney may recommend traveling with evidence of this change if the initial sponsor named on the approval notice is no longer in existence or is no longer the direct employer.
  • Check the employee’s visa to make sure it’s still valid. Does the visa stamp in the passport reflect the correct visa status and employer? If not, contact your attorney: You may have to take additional steps before your employee returns to the US. There are also specific exceptions made for short trips to Mexico and Canada. Certain foreign nationals traveling to these locations may have the ability to re-enter the US on an expired visa.
  • Check passport validity. Sponsored employees from most countries must have a valid passport to enter the US. Further, the passport should expire no sooner than six months beyond the expiration date of the employee’s most recently approved period of stay. For example, if an employee’s H-1B I-797 Approval Notice expires on March 1, 2019, the passport should expire no sooner than September 1, 2019, to ensure the employee is reissued the full period of H-1B status upon return to the US.
  • Determine whether there is a visa case currently pending with USCIS. Employees or their family members with active change-of-status cases pending with U.S. may put their petitions at risk if they leave the country. When a foreign national requests their status be changed, but then leaves the US, the Service considers such petitions abandoned. Although employees can apply for a new visa status from abroad, this might result in significant delays in returning to the US and work.
  • Determine whether there is a green card case pending or planned for when the employee returns. There are special rules that apply to international travel when entering the Adjustment of Status, Form I-485, stage of the permanent resident (green card) process. In order to leave the US without abandoning or compromising this application, the employee may first need to obtain advance travel permission, known as Advance Parole. If you’re in the middle of a green card process or planning to start one soon, make sure you touch base with your immigration legal counsel before the employee leaves the US.
  • Maintain accurate travel records. Employee travel outside the US could affect their visa expiration dates, so both employers and attorneys need to be kept aware of any and all travel. This is another place where technology can play a key role in maintaining accurate travel records and expiration dates.

Coordination is important

Because employers are the ones responsible for completing most work-based visa applications and renewals, it’s your responsibility to monitor and keep track of all this paperwork. But obviously, you can’t do this without help and information from your employees and their managers.

Technology can help synchronize communication among employees, managers, HR, and attorneys, reducing the risk of noncompliance and the loss of work authorization. Invest in technology that offers your employees a mobile app so that they can easily update all stakeholders on their travel plans, upload important documents by snapping a photo, and have access to their full immigration history in case there is a problem or confusion when entering the U.S.

As part of your international travel discussion, be sure to make documentation requirements clear and make sure your employees understand their role in maintaining their visa status.