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Wednesday, December 9, 2015

HB1, EB, and Employer sponsored greencards -- can they charge you for the service?

A recent post on a legal bulletin board asked about the intersection of immigration and employment law. It is worth noting that this type of case is far too common, and extremely disturbing. While an employee should be mindful of his/her loyalty to the company that sponsored him/her, you cannot be made a slave. To wit:

My previous company applied for my green card and made me sign a contract that if I leave the company within a year of receiving my green card, I would be responsible for the immigration attorney fees up to $15K. I worked for the company for 5 years. I left the company after 4 months of receiving my green card. The reason of my leaving was due to the company changing my job responsibility significantly (also my colleagues' in my team) 6 months prior to my departure. At least 2 colleagues of mine left around the same time and my supervisor was laid off. The company suspended my entire final paycheck plus cashed-in PTO ($4K). This put me in a very difficult situation. I used my entire savings to pay my rent and expenses of family (unemployed wife and 2 toddlers). On top of that, they pursued to get an additional $5K via a payment plan. After arguing that I left because they changed my role and that I would have stayed otherwise for many more years, they said they'd only ask for $2500 to close the deal. I have not been responding to their calls/letters for 2 months. On their last letter they implied a potential upcoming lawsuit, if they don't receive the $2500 by January 1st.

In this instance, you need to contact us immediately. This is absolutely unacceptable. You have two issues. At its heart, this is an immigration issue. The green card (LPR status filed through an I-140) belongs to you. The company is not permitted to hold you hostage in anyway for the card they procure. That is called indentured servitude, or peonage, and makes them liable for serious civil consequences. As for a contract breach, if the basis for the "deal" is void ab initio, any actions they take cannot be found legal.

I might also add that deductions from your paycheck must be looked at very carefully. Deductions are, generally, only legal if they fall under a very narrow band approved by the state. While you could technically agree to reimbursement of employer paid expenses (at the I-140/I-485 level), it does not sound like you agreed to this, and it certainly does not appear that they had a statutory basis for deducting the money. I would absolutely fight this and I would demand damages and costs.

I would add that the provisions making the company liable for PERM cert, HB costs (for your initial hiring), legal fees, etc. can be found at 20 C.F.R. 656.12. An agreement for the I-140/485 costs could be had with the employer, but they can't take the money from your pay absent a very clear agreement from you to do so, and further, ensuring you don't at least fall below minimum wage. Deductions from your pay are controlled by statute in the jurisdiction you are located in -- DC rules are found under Title 7, Chapter 9, Wage regulations (see: Section 915, at DC Wage and Hour Laws).

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Lili O'connell, Esq.
Charles Hatley, Esq.
1-800-579-9864 admin@hanoverlawpc.com

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