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Understanding Issues Surrounding Work Visas

Risk Management and Compliance

Understanding Issues Surrounding Work Visas

Understanding Issues Surrounding Work Visas

Many institutions of higher education use federal H-1B visas to help bring trained professionals to the institution to work in specialized fields. Yet even when these professionals are legally eligible to work in the U.S., the proper paperwork must be completed to ensure that both the professional and the institution are in compliance.

“There are many requirements that employers must be made aware of when hiring professionals, including several required filings, continuous audits performed by the Department of Labor (DOL), and ongoing U.S. Citizenship and Immigration Services (USCIS) site visits and inspections,” says Frida Glucoft, partner at Mitchell Silberberg & Knupp LLP in Los Angeles. Making sure that these requirements are filled is not just the responsibility of HR; academic leaders must also understand what the requirements are in order to keep their university in compliance. 

The importance of compliance

“Most problems with [work visas] come up with compliance,” says Glucoft. “It’s not about whether [the employee] is legally working or not,” she says, noting that most international hires are eligible to work legally in the U.S. However, if the university neglects the proper filings, the consequences can be expensive and time-consuming. “The H-1B visa requires a lot of paperwork, but if [it’s not] done, the [university] can be fined, and the fines are heavy,” she says.

Universities may neglect the proper filings because of their labor-intensive nature. “Compliance is not respected because it’s a nuisance,” Glucoft says, adding, however, “It’s a myth that no one will come after us in education.” Institutions should avoid the temptation to believe that the institution’s status as an educational establishment or as a nonprofit organization will provide protection from the laws surrounding work visas.

The self-audit

Glucoft recommends that universities complete an internal self-audit of their handling of international employees. Conducting a self-audit has several benefits.

“An internal self-audit gives peace of mind to [university] executives,” Glucoft says. She recommends that the auditor pull random examples of affected employee files from across the alphabet, then examine those files to see whether any patterns emerge. If errors are made in multiple files, it may indicate that a correction needs to be made across the processing system and across an entire group of files.

The self-audit should be conducted by someone outside the university with legal training rather than leaving the task for HR. “HR is bombarded with paperwork,” Glucoft notes. “There has to be legal input to do this.” Going to an outside attorney will also help the university correct any mistakes, as the attorney can “give guidelines on what is a permissible correction and what is not,” Glucoft says. Not all problems can be fixed. “Sometimes it’s ‘better late than never,’ and sometimes there’s nothing you can do,” Glucoft says. However, the fact that the university initiated a self-audit goes a long way toward establishing that the university has made a good-faith effort to comply with the law.

One of the most common errors, Glucoft says, is mixing confidential information with less sensitive data. “Immigration forms have very confidential information; the most common mistake is mixing confidential information with other information.”

Another way universities can demonstrate their good-faith efforts to comply with the law is by having educational programs in place. Lunch-and-learns, seminars, and other educational offerings for those who hire help demonstrate that the university is interested in ensuring that its employees are complying with the law. The flyers from those educational sessions should be kept in a file in case the university is questioned.

Above all, Glucoft urges universities, “Don’t underestimate [the importance of] maintaining files and data.” She notes that the “focus seems to be on enforcement right now,” and the university that is diligent about maintaining proper files will be more prepared when questions come.

Jennifer Patterson Lorenzetti is managing editor of Academic Leader.


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