There is an old saying, ‘Fool me once, shame on you. Fool me twice, shame on me.’ When it comes to hiring and immigration law I wish I were only fooled once or twice but the truth is in my twenty plus years of staffing I’ve been fooled several times as to just who can be hired that is not a U.S. Citizen.
If you have been in the staffing business in one shape or form for any length of time you have had to deal with the visa issue. Whether you are a recruiter or hiring manager within a staffing or corporate environment, at some point, you have come across a strong candidate that you aren’t sure if you can hire due to their residency status.
My kind-heart and ability to be gullible has caused me to move a couple of crucial candidates along in the recruiting process only to be stopped near the end where I discover their status required legal sponsorship; what a time waster these endeavors were.
Over the years a stable question that I will ask during the phone screen is:
• Are you eligible to work in the United States indefinitely? Or…
• Are you eligible to work in the United States without benefit of visa?
The majority of the answers are a simple, ‘yes’. Some will volunteer they are a U.S. Citizen or that they are a Green Card holder. Most of us know that if the candidate has an H1B visa they will require sponsorship. When we hear the word, ‘visa’ we can imagine that further legal representation and documentation will be required. Even a TN visa will eventually require additional documentation during the renewal process.
Several years ago I was tripped up when a much desired candidate told me that their ‘residency status was EAD’ and therefore did not require sponsorship. They said they had their EAD status for their Green Card processing. I took this candidate on to final interviews before I learned through the company legal department that EAD is not a status. EAD stands for employment authorization document and there are 3 ways to obtain the EAD. You can obtain the EAD through Green Card processing, F-1 student or dependent of a visa holder such as L-2, J-2 or TD. Ideally when the holder of an EAD is hired the employer maintains the EAD and assists with the application process. In addition the EAD must be portable for the employer to hire the candidate. Portable means that the EAD is able to be transferred to a new employer. Typically the candidate must have the EAD 6 months to one year before it is portable
The following are common visas that candidates may hold while pursuing a position of employment:
• H-1B This is a Work Visa
• F-1 This is a Student Visa *After graduation the candidate may still have their F-1 while searching for an employer to support their H-1B
• TN This is the Trade visa for Citizens of Canada and Mexico to work in the USA
• L-1 This visa is generally valid for a short amount of time with extensions (max stay is seven years). These visas are available to employees of an international company with offices in both the United States and abroad
• L-2 This is a visa for the spouse that is holding an L-1 visa
To prevent being fooled even once make sure to ask all candidates whether they are eligible to work in the United States indefinitely without benefit of visa. Remember that unless your company has the legal and financial means to sponsor and participate in document preparations you will need to hire only U.S. Citizens and Green Card holders.
*All data and information provided on this site is for informational purposes only. The author is not a lawyer and is not representing any employer.