Tag: PERM

You Are Sponsoring a Foreign National Employee for Permanent Residency, Can You Clawback Some of the Fees?

Companies usually hire a foreign national who requires visa sponsorship because they cannot find a U.S. worker with those skill sets, which is frequently in the STEM fields. However, visa sponsorship comes with significant costs to the employer. Employers may be able to recover a portion of the immigration sponsorship fees by implementing what are called “clawback” provisions into their employment agreements. Clawback provisions are terms in the employment agreements that, in the event of a resignation by the employee before a certain date, require the employee to reimburse the employer for a portion of the costs or fees associated with his or her visa sponsorship.

Not All Visa Fees Can Be Clawed Back

But first, it’s important to understand which sponsorship fees and costs are potentially recoverable and which are prohibited from being “clawed back.”

  • H-1B Petition: Because these visas have a prevailing wage set by the U.S. Department of Labor (DOL) a H-1B employer may not clawback any attorney fees or government filing fees used to obtain the H-1B petition approval by U.S. Citizenship & Immigration Services (USCIS).
  • Other Visas: The same restriction applies to the Australian E-3 visa and the Singapore/Chile H-1B1 visas as well as the H-2A, H-2B, and J-1 visas.
  • PERM Labor Certification Sponsorship for Permanent Residency: PERM Is the most common method for an employer to sponsor a foreign national employee for permanent residency (green card). It is done by conducting recruitment and proving to DOL that no qualified U.S. worker applied for the position. An employer is required to pay for all of the fees and costs associated with the PERM process.
  • I-140 Immigrant Petition: After DOL certifies the PERM application and agrees that no qualified U.S. worker is available, the employer must file an I-140 immigrant petition with USCIS. The attorney fees and costs for the I-140 may be clawed back. The purpose of the I-140 immigrant petition is for the employer to prove to USCIS that the foreign national has the required education, experience and special skills outlined in the PERM filing with DOL. In addition, the I-140 includes financial documents showing that the employer has the ability to pay the offered wage.
  • I-485 Adjustment of Status to Permanent Resident filing: The employer may clawback the fees and costs associated with the I-485 adjustment of status application (green card).

Practice Pointers

  • Still At Will: The clawback provisions should be in writing. It should also indicate that the employment is still at will, if applicable.
  • Final Paycheck: The majority of states, including California, do not allow an employer to deduct anything from a final paycheck without the express consent of the employee. This includes fees and costs pursuant to the clawback provision.
  • Deterrence: Given that an employer cannot clawback from the final paycheck and suing a former employee to collect the amount in controversy is not always practical, a clawback provision can be used as a deterrence for early departure.

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Copyright © 2024, Sheppard Mullin Richter & Hampton LLP.

Another Government Shutdown Looms: What It Means For Employers With Foreign National Employees

Only two days before the deadline in November 2023, the U.S. Senate passed a temporary budget to fund federal agencies through Jan. 19, 2024, marking the first time since 2012 that Congress entered a holiday season without the threat of a December shutdown. Now, following the start of a new year, lawmakers have less than two weeks to advance a recent spending agreement and reach a more permanent solution.

The November 2023 vote marked the second time Congress extended the budget for fiscal year 2023, which expired in September, to avert a government shutdown.

IMPACT ON IMMIGRATION

For employers, immigration funding and legislation are top of mind whenever a shutdown looms. Each time the government is on the verge of a shutdown, employers must identify cases that are affected and attempt to locate an avenue to mitigate the impact of the potential shutdown. This increases costs and reduces efficiency, among other complex consequences.

During the 2019 government shutdown, the U.S. Department of Justice suspended 60,000 hearings for non-detained migrants, causing significant delays in the immigration system. Rescheduling an appearance on the immigration docket can often take years, leaving migrants and their families to wait in uncertainty in the interim.

On the employment-based side of immigration, a mad dash ensues each time a government shutdown becomes imminent because applications made to the Department of Labor that are critical steps in both nonimmigrant and immigrant visa categories come to a halt. With already lengthy processing times, foreign national beneficiaries and their employers cannot afford to wait 90 days, as we saw in 2019, for government processing to resume.

Employers and their legal teams would be wise to shift their focus during these times to pushing forward the submission of as many Labor Condition Applications (LCAs), permanent labor certification applications (PERM), and prevailing wage determination requests as possible. A missed window of opportunity can result in years-long delays, or worse, the loss of work authorization, for critical foreign national talent in the U.S.

HOW TO PREPARE

With deadline déjà vu, now is the time for employers to prepare. Employers should consider the following three actions:

1) Submit Labor Condition Applications for all foreign nationals with a nonimmigrant visa (NIV) status expiring within the next six months, should the relevant nonimmigrant visa category require an application, such as for H-1B, H-1B1, and E-3 visa classifications

2) Submit Prevailing Wage Requests for all initiated PERM processes

3) File any PERM applications of individuals for whom the requisite recruitment steps and waiting periods have been completed

© 2023 BARNES & THORNBURG LLP
For more on Foreign National Employees, visit the NLR Labor & Employment section.

DOL Institutes Enhanced Password Requirements for Permanent Case Management System (PERM) Users

Greenberg Traurig Law firm

Effective August 25, 2014, the Department of Labor (DOL) has instituted enhanced password requirements for Permanent Case Management System (PERM) users. In the next 90 calendar days, current PERM users will be required to update existing passwords to meet the new security criteria. In addition, all PERM users will be required to update their passwords every 90 days. The DOL sends reminder emails on the 75th, 80th, 85th, 88th, 89th, and 90th day. Users may also choose to update their password at any time prior to expiration. Should the password expire, the user will be required to re-activate the account by identifying himself or herself and answering a secret question correctly. The DOL will send a temporary password for the user to access the PERM account and set up a new password.

The new password must meet the following criteria: 1) 8-15 characters, 2) one special character, 3) one upper case letter, 4) one lower case letter, 4) one number, and 5) no recycling of a prior password used in the past 12 passwords. For detailed instructions regarding the new password rollout, you can review the DOL’s Quick Start Guide.

ARTICLE BY

Emily R. Liss
 
OF 
Greenberg Traurig, LLP

DOL Institutes Enhanced Password Requirements for Permanent Case Management System (PERM) Users

Greenberg Traurig Law firm

Effective August 25, 2014, the Department of Labor (DOL) has instituted enhanced password requirements for Permanent Case Management System (PERM) users. In the next 90 calendar days, current PERM users will be required to update existing passwords to meet the new security criteria. In addition, all PERM users will be required to update their passwords every 90 days. The DOL sends reminder emails on the 75th, 80th, 85th, 88th, 89th, and 90th day. Users may also choose to update their password at any time prior to expiration. Should the password expire, the user will be required to re-activate the account by identifying himself or herself and answering a secret question correctly. The DOL will send a temporary password for the user to access the PERM account and set up a new password.

The new password must meet the following criteria: 1) 8-15 characters, 2) one special character, 3) one upper case letter, 4) one lower case letter, 4) one number, and 5) no recycling of a prior password used in the past 12 passwords. For detailed instructions regarding the new password rollout, you can review the DOL’s Quick Start Guide.

ARTICLE BY

Emily R. Liss
 
OF 
Greenberg Traurig, LLP