Responsibilities and Liabilities of an Employer Sponsoring a U.S. Green Card

One of the most common options for foreigners to receive U.S. green cards or Lawful Permanent Residency is through an employment-based immigration petition. Throughout the process, a U.S. employer sponsors the foreign national for a green card. The typical employment-based petition is based on a Permanent Labor Certification Process also known as the PERM.

What Financial Costs Will the Employer Sponsoring a Foreigner Accrue?

To get a glimpse of the costs, the employer needs to understand the steps involved in. The PERM-based procedure to a U.S. green card is generally a three-step process.

First, the PERM Labor Certification Process must be completed. This entails the employer publicizing the foreign worker’s position to see if there are any qualified U.S. workers available to fill in the job position. If there is no one available and willing, the employer then files the PERM application with the Department of Labor (DOL). When the DOL grants approval for the PERM application, the first step is completed.

Per U.S. regulations found at 20 C.F.R. § 656.12, the U.S. employer MUST pay ALL of the costs associated with the PERM process. This also includes attorney's fees and costs of advertising for the position.

Secondly, once the DOL approves the PERM, the employer/sponsor must submit an I-140 petition with the United States Citizenship and Immigration Services (USCIS). The I-140 gives USCIS information on the foreign worker, your company (in particular, evidence such as an annual report or tax return, to show that you have the resources to pay the employee’s wages), and the job opportunity.

A filing fee for the I-140 petition is required to be paid by either the employee or employer. USCIS does not demand that the employer pay the filing fee.

Thirdly, once USCIS approves the I-140 petition and the foreign worker’s priority date is current (a visa has become available in the appropriate category), the foreign worker can complete the last step of the procedure which is filing the U.S. green card application on the Form I-485 with applicable forms and documents.

USCIS also requires a filing fee to be paid by the employee for the Form I-485, Application to Register Permanent Residence or Adjust Status.

Are There Penalties the Employer Could Face for Non-Payment?

U.S. law obligates that all employers pay all costs associated with the PERM procedure. That same U.S. law also specifies that if the DOL finds out that the employer did not pay those costs (or that the employer sought reimbursement from the foreign worker for those costs) the employer will be inspected by the U.S. government. The employer could possibly face substantial penalties or other fines.

The employer also has the right to no longer employ the foreign worker, if for some reason he or she stopped working or otherwise indicates the employee will not work for the employer upon obtaining a green card. An employer can then update the DOL (even if the employer is in the PERM part of the process) or within the (Form I-140 or Form I-485 part of the process).

Every case is unique by its own merit so to avoid being fined or penalized an employer reserves the right to seek the advice of an immigration attorney. It is important to know that it is advisable for an employer to retain an immigration lawyer whose expertise is on employment based immigration.

Is There Anything Else an Employer Should Know When Sponsoring a Foreign Worker?

An employer or sponsor is responsible for ensuring that all of the information they provide to the DOL or USCIS is completely precise and correct to the best of their knowledge. If an error is made on the PERM or I-140 application forms they could be denied.

If an application is denied there is no refund or monies returned to the employer or sponsor. It is very important that every jot of information is double and triple checked before filing applications. During the immigration application process, both USCIS and DOL may contact the employer with requests for additional information in order to supplement any missing information. Such requests will come with strict deadlines in which it is the employer’s responsibility to submit the information being requested in a timely manner.

Have an Attorney on Call

Hiring a foreigner to work for you is no small task. Before you plan on starting the application process for a PERM or employment based green card, have an Immigration legal expert assist you. There are too many details that require getting accurate information. Schedule an appointment with Gambacorta Law Office by calling us at 847 443 9303 or visit our website.