Employer's Obligations to Workers Being Sponsored for a Green Card
By electing to sponsor a foreign worker for a green card, the U.S. employer is taking on several important responsibilities and must meet several obligations, as described below.
Paying Initial Recruitment Costs
The first question many employers ask is, “How much does it cost to sponsor a foreign worker for a green card?” The actual cost varies, because the specific circumstances for each employer, foreign worker, and job position are different. However, there are certain financial obligations that all employers must consider when preparing to sponsor a foreign worker.
The vast majority of employers sponsor foreign workers through a process called labor certification (commonly referred to as PERM) wherein the employer must place a series of advertisements for its job opportunity and attest that no qualified U.S. workers applied for the position -- all before so much as contacting the U.S. immigration authorities to start the visa application process.
U.S. labor and immigration laws require that the employer pay ALL of the costs of the PERM process. These costs include (but are not limited to) the costs of the PERM advertisements as well as any legal fees incurred by retaining an immigration attorney. (And, due to the complexities of the PERM process, retaining an immigration attorney is usually highly recommended.)
If the employer fails to cover all of the costs associated with PERM, the U.S. Department of Labor (DOL) could levy fines or other punishments. This makes it very important for employers to assess and prepare for these costs at the beginning of the sponsorship process.
Paying Application Fees and Costs
Lawyers' fees vary from attorney to attorney, but in general an employer can expect to pay anywhere from a few hundred to a few thousand dollars for the attorney's services.
On the other hand, visa application fees do not vary. Currently (as of late 2016), there is no fee for filing the PERM application with the DOL. However, there is a $700 fee (as of December, 2016) that employers are expected to pay when filing the I-140 petition with U.S. Citizenship and Immigration Services. (The law does not, however, prohibit the employer from passing this cost on to the employee.)
U.S. immigration law allows immediate family members (spouses and children under the age of 21) to obtain green cards as derivative beneficiaries of foreign workers. The employer is, however, under no obligation to pay for the green cards for these family members.
Paying Foreign Workers at Prevailing Wage Levels
Another cost that employers must consider is that of actually employing the foreign worker. U.S. immigration law mandates that employers pay foreign workers at least the prevailing wage for the job position in the area of employment.
The prevailing wage can be different for the same positions that are in different locations. For instance, let's say that Employer A is located in rural Texas and wants to hire a foreign worker as a pediatrician. Employer B is located in downtown New York and also wants to hire a foreign worker as a pediatrician. The prevailing wages for a pediatrician in rural Texas and downtown New York are very different, and each employer must be sure to pay the prevailing wage for its location.
To find the prevailing wage for a prospective position, employers submit a prevailing wage request to the DOL. The DOL then informs the employer of the wage for the position in the worksite location.
There is no exception this rule: All employers sponsoring foreign workers must agree to pay and in fact pay the foreign worker the prevailing wage once the worker commences employment. Part of the sponsorship process requires the employer to prove to United States Citizenship and Immigration Services (USCIS) that the employer has the financial ability to pay the foreign worker’s wage. Therefore, it is highly recommended that employers obtain the wage determination from the DOL at the beginning of the sponsorship process, in order to ensure that the employer can demonstrate its ability to pay the wage.
For How Long the Employer Must Continue to Employ the Foreign Worker
U.S. immigration law does not establish a particular length of time for which the foreign national must continue working with the employer-sponsor after receiving the green card. Assuming the employment relation is "at will," the employer can fire or lay off the employee at any time; and the employee is free to quit at any time.
If, however, the worker leaves very soon after receiving the green card, USCIS may feel that the worker and the employer never intended for the worker to permanently work for the employer, and that the entire employer sponsorship process was fraudulent. This issue may come up at the foreign worker's future citizenship interview.
Even before the worker receives the green card, however, the American Competitiveness in the 21st Century Act allows the worker to change employers. Thus, there is no bright line test to determine how long employment with the sponsoring employer must continue.
Treating Foreign Workers in a Nondiscriminatory Fashion
U.S. labor law prohibits employers from discriminating against workers on the basis of citizenship or national origin. Discriminatory practices include placing the foreign worker in unfavorable working conditions (as compared to other company employees in similar positions) solely on the basis of the worker’s national origin, passing the foreign worker over for promotions or employment advances (also solely on the basis of the worker’s national origin), and so forth.
Violating these labor laws can result in serious consequences for the employer including heavy fines and other punishments.
Hiring Legal Counsel
Although it is by no means a requirement to hire an immigration attorney, due to the considerable expense and complexity of employer sponsorship it is highly recommended that employers do so.