What Aspects of Eventual Green Card Sponsorship Should Be Included in an H-1B Employment Contract?

When negotiating an employment contract with an H-1B employer, including future green card sponsorship may entail several contractual provisions that you should consider carefully.

If your new H-1B employer has agreed to sponsor your future green card application, you may wish to request that the sponsorship is included in your employment contract. For additional information about negotiating green card sponsorship with an H-1B employer, see How Do I Ask Prospective H-1B Employers Whether They'll Sponsor Me for a Green Card?

What Stages of the Green Card Process Will the Employer Pay For?

During contract negotiations, you should determine whether the company hiring you will cover the costs of all or some of the stages of the green card process including all filing fees, attorney's fees, any applications for your immediate family, and your medical examinations.

There are normally three stages of the employment-based green card process: PERM, immigrant petition, and green card application. Depending on circumstances, some applicants are able to skip the PERM process, but for the purposes of this article, let's assume that it's included.

One important factor to consider is that the hiring company is legally required to cover certain costs of the immigrant petition, and is prohibited by law from passing those costs on to you as the employee. An employer must pay all costs associated with the PERM process. The employer is not required to cover the costs of the immigrant petition or the green card application, but many companies opt to cover these expenses anyway.

A Contractual Provision May Condition Green Card Sponsorship on Work Performance

There are some common contractual provisions that employers may want to include with green card sponsorship. If the employer is unfamiliar with your work product or uncertain of the value you will add to the company, it might want to make green card sponsorship conditional on good employee reviews over a designated number of quarters or years.

When negotiating the number of quarters or years before sponsorship, take a look at how many of the six years of H-1B validity you have left. If you wait too long to start the green card process, you may lose your H-1B status before you have permanent residence, resulting in a gap in employment authorization. Additional information on this topic is available in How Do I Ask Prospective H-1B Employers Whether They'll Sponsor Me for a Green Card?

A Contractual Provision May Require Reimbursement If You Leave the Company

The company may also include a provision in the contract saying that if you leave the job within a short period of time after receiving your green card, you would have to reimburse the company for a portion of the green card costs and fees.

Part of the calculation during employment negotiations is the long-term future value that you will bring to the company versus the costs of the green card process. If you leave the company soon after receiving your green card, the company would be losing the value that it relied on when signing the contract, and therefore would want to be reimbursed for expenses.

If the company includes a reimbursement provision, it cannot require you to reimburse the company for any costs associated with the PERM process, according to the legal obligations described above.

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