Employer's Liabilities and Responsibilities as a Green Card Sponsor

One of the most common ways that foreign nationals obtain U.S. green cards is through an employment-based immigration petition. During this 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, referred to as PERM.

If you are an employer thinking about sponsoring a foreign worker for a U.S. green card through PERM, this article provides an overview of your liabilities and responsibilities.

What Costs Will the Employer Sponsoring an Immigrant Incur?

To understand the likely costs, you first need to understand the steps involved. The PERM-based road to a U.S. green card is typically a three-step process.

First, you must complete the PERM labor certification process. This involves the employer advertising the foreign worker's position to see whether any qualified U.S. workers are available for the job. If none are available and willing, the employer files the PERM application with the Department of Labor (DOL). When the DOL approves the PERM application, the first step is completed. Per U.S. regulations found at 20 C.F.R. § 656.12, the employer MUST pay ALL of the costs associated with the PERM process. This includes attorney's fees and costs of advertising for the position.

Second, once the DOL approves the PERM, you as the employer/sponsor must file an I-140 petition with 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 a tax return, to show that you have the resources to pay the employee's wages), and the job opportunity.

USCIS requires that you submit a filing fee with the I-140 petition. This fee can be paid by either the employer or the employee. (The employer is NOT required to be the one to pay this filing fee.)

Third, 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 final step in the process: filing the green card application (on Form I-485, with related forms and documents).

Just like with the I-140, USCIS requires a filing fee with the I-485 application. The employer is NOT required to be the one to pay this filing fee.

What Penalties Might the Employer Face for Nonpayment?

Per the previous discussion, U.S. law requires employers to pay all costs associated with the PERM process. That same U.S. law also specifies that if the DOL discovers that the employer did not pay these costs (or that the employer sought reimbursement from the foreign worker for these costs) the employer will be investigated by the U.S. government, and could face hefty financial fines and other penalties.

If you no longer intend to employ the foreign worker, perhaps because they stopped working for you for any reason or otherwise indicates the employee will not work for you upon receiving a green card, you might need to notify the DOL (if you are in the PERM part of the process) or USCIS (if you are at the I-140 or I-485 part of the process).

Each situation is unique, and you would be well-served to consult an immigration attorney to avoid a potential penalty or fine.

Please note that an employer might incur other liabilities during this process, for which reason it's wise to consult an immigration attorney specializing in employment-based immigration.

What Else Should an Employer Know About Sponsoring a Foreign Worker?

As the employer/sponsor, it is your responsibility to ensure that all of the information you provide to USCIS and the DOL is completely accurate and correct to the best of your knowledge. If you accidentally make a mistake on the PERM or I-140 applications, these applications can be denied.

If the applications are denied, you do NOT receive a refund for the money you spent on preparing the applications/placing the advertisements, so it's important that you double and triple check the applications before submitting them. It is extremely unfortunate when an application is denied for a silly mistake or typo that the employer could have easily corrected prior to submission.

As the employer/sponsor, you are also required to provide accurate and up-to-date information to the DOL and USCIS if requested to do so. During the immigration process, both USCIS and the DOL may contact you with requests for additional information in order to supplement or cure any defects with the applications. These requests will also have a strict deadline. It is your responsibility to provide the requested information within the provided deadline.