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Talent Management Perspectives

Published November 2007

Immigration Legislation Impacts Recruiting and Branding Efforts

Kellye Whitney

The past few months have seen a lot of activity around new or proposed immigration reform legislation. It's tough to keep up with the changes around what is essentially a government-controlled process, but it may be worth it for talent managers to not only try but also to seize an opportunity to improve their organization's global recruiting and branding efforts.

One of the issues on the table is the Social Security Administration's no-match letter. While not specifically related to immigration — it might be considered more of an employment verification or I-9 issue — it is often lumped in with the immigration discussion because failure to comply would mean employers that knowingly continue employment for undocumented workers pay penalties.

Paul Colman, director with immigration management service provider VISANOW, said in the past, if there was a mismatch situation when an employee completed his or her I-9 verification form, the rules were somewhat gray in regards to what steps employers had to take to make sure they were not liable for fines. Recently, however, the Department of Homeland Security announced some new rules and issued very specific steps employers must follow to ensure they're in the clear.

"An injunction was passed in northern California that actually put that whole program on hold for the time being," Colman said. "Obviously, when this was first introduced, employers stood up and said, 'Wait a second. You're introducing penalties and legislation that will affect us directly, but you're not providing an alternative to supplement our workforce. You're taking away a possible labor pool, but providing no alternative to fill those positions.'"

Colman also said three substantial revisions were made to the labor certification process this past summer.  First, employers can no longer pass the expense for the labor certification process — which is part of the green card application — onto the applicant.

"Most employers handled it a little differently," Colman explained. "Some would pay the full cost, others would split it. Others it would be on the individual applicant to pay. But it was decreed by the Department of Labor that employers had to pay, which obviously had specific budgeting and finance implications. Another big change implemented was the prohibition of substitution of beneficiaries on green card applications. In the past, employers would start an application process, which could take a significant amount of time. If that individual they started the process for was no longer with the organization they could substitute another applicant into that form."

Colman said this sped up what could be a long and tedious process, but reports of fraudulent activity led to government intervention.

"That really wasn't how the green card process was created and developed," he said. "But if you're looking at agricultural employers, those in the hospitality industry or ones that have deep turnover, that was obviously a big change to how they managed their process. The last change that went in was the introduction of a 180-day validity period, which essentially limited the filing period between an approved permanent labor certification, which goes with another form, the I-140 (Immigration Petition for Alien Worker). It really sped up the timetable and put the pressure on employers and HR departments, specifically, to make sure they had all their ducks in a row. Once they get the application they need to turn it around and keep the process going or lose the window to get that permanent residency application in."