Recently, we received calls from companies who want to help employees file for a green card. Our clients wanted to know what to do next after employees said that they “found” a lawyer to help.
The employer must drive the application process, not the employee
Because the employer is the sponsor for an employment-based green card petition (done through what is called, the PERM labor certification process in most cases), it is absolutely essential that the employer choose the immigration attorney and manage the application process, not the employee. The employer is ultimately responsible for complying with all federal regulations and must attest that it has done so. Also, a reputable immigration attorney would not begin this process without having a retainer agreement with the employer in place and having consulted with the employer about this very-detailed and complex process.
The most important thing to remember is that the employer, not the employee must control the process from the very beginning, including hiring the lawyer who will start the process and file the applications. Employers are in charge and are responsible for the content of the application, not the employee.
One company called us, because an employee was asking for corporate tax returns and other confidential documents. This company had not retained the lawyer who was advising their employee on the green card process. Although a manager spoke generally with this lawyer to help the employee, the manager did not understand the process, the obligations, and the significance. Regardless, the lawyer should have been more clear about his role and have a signed retainer agreement in place with the company.
Another company advertised for an executive-level position based on a job description written by the employee. The attorney that the employee used had not sought any input from the employer about the job duties or the qualifications needed. Several qualified U.S. applicants applied for the job. We only learned about this when the company called us for advice on what to do about the number of applicants.
While it’s not their fault, these companies did not understand their role in the immigration process because they had never been through it before. Additionally, the attorneys with whom their employees consulted either did not contact the companies or properly advise them. The employees ended up making decisions that could have put the companies at risk of violating immigration regulations.
Many employers don’t realize what immigration “sponsorship” really means
Employers who have not dealt with the immigration system in the past simply don’t know what’s involved. Well-intentioned managers often rely on the employee to find a lawyer and offer support for the application. “We’ll help you as much as we can in the process,” most say, without realizing the consequences or consulting with in-house counsel.
Because we are seeing more questions from our non-immigration clients, we thought it best to know what’s involved before agreeing to do this. It’s a deeply complex, expensive, and potentially long process.
The information here applies to any company, whether the employee is a well-established professional or a loyal H-2A worker who returns every year to perform incredibly taxing farm work.
- The employer should choose the immigration attorney. It’s the immigration attorney’s job to explain his or her role in advising the company through the process.
- Explore any potential conflicts of interest that may arise between the employer and employee, such as termination or theft.
- Determine whether only the company will be the client or whether the immigration attorney represents both parties. Delineate roles clearly in the retainer agreement and design a process on how to resolve a conflict if one arises.
- Understand the company’s liability that results from filing an application with the Department of Labor and Citizenship and Immigration Services.
Sponsoring someone for a green card through their employment is known as the PERM process. Short—and long term planning with an experienced immigration attorney will save you and your foreign employee time, money, aggravation, and possibly, a denial in the long run.
What is the PERM labor certification process?
The PERM process of sponsoring your employee for a green card is quite complex. It involves three phases and three government agencies, the U.S. Citizenship and Immigration Services, the Department of State, and the Department of Labor. The three phases are:
- Determining a prevailing wage, recruiting American workers, and filing an application for a PERM labor certification with the Department of Labor.
- Filing an employment-based immigrant visa petition, the I-140 with U.S. Citizenship and Immigration Services.
- Watching the Department of State Visa Bulletin for an available immigrant visa. The State Department determines when the employee can file for an immigrant visa (or green card) in each employment-based visa category.
Employers want to help. We understand that. But it’s essential that the company drive the process and understand every step.
Our immigration department can assist you if you would like to help an employee obtain a green card. We’ll take the time to explain the process, the cost, and the time frames.