This guide has been prepared to assist in the basic understanding of an U.S. employer’s financial obligation in regard to an “Employment-based Preference" immigration application. The common term, “U.S. permanent residence application," is a concept indicating a series of multiple-step applications. There is no single application that completes the residency application process. Except for a few special groups of immigrants designated by law, all foreign nationals applying for permanent residence in the U.S., based on an offer of permanent employment, follow3 distinctive stages of processing, which are administered by different federal agencies:
- 1st Stage: The sponsoring employer submits an ETA Form 9089, Application for Permanent Employment Certification, to the U.S. Department of Labor, on behalf of the particular employee sponsored. In this stage, the Labor Department certifies that(a) noqualified U.S. workers are currently available to fill the position of particular job opportunity, and (b) employment of the foreign national will not adversely affect the working conditions of other U.S. workers, similarly employed.
- 2ndStage: Only upon the DOL’s approval for the ETA-9089 application, the sponsoring employer submits a USCIS Form I-140, Immigrant Petition for Immigration Worker, on behalf of the foreign national. In this stage, the USCIS agency examines whether the foreign national possess the necessary qualifications to perform the duties of the position offered by the employer.
- 3rdStage: Only upon the approval of the I-140 petition and upon the availability of an immigrant visa number per the annual visa quota system, the foreign national submits the final stage application, USCIS Form I-485, Application to Adjust Status. In this stage, the same USCIS agency examines whether the foreign national is devoid of any inadmissible conditions (criminal background, health problems, etc.) and is eligible to become a permanent resident in the U.S.
The sponsoring employer’s financial obligation applies only in the 1stStage of application. This employer obligation was imposed in May 2007 by Code of Federal Regulation, Title 20, section 656.12, which provides in the pertinent part (copy of the section attached):
“An employer mustnotseek or receive payment of any kind for any activity related to obtaining permanent labor certification, including payment of the employer’s attorneys’ fees, whether as an incentive or inducement to filing, or as a reimbursement for costs incurred in preparing or filing apermanent labor certification application, except when work to be performed by the alien in connection with the job opportunity would benefit or accrue to the person or entity making the payment, based on that person’s or entity’s established business relationship with the employer. An alien may pay his or her own costs in connection with a labor certification, including attorneys’ fees for representation of the alien, except that where the same attorneyboth thealien and the employer, such costs shall be borne by the employer. For purposes of this paragraph (b), payment includes, but is not limited to, monetary payments; wage concessions, including deductions from wages, salary, or benefits; kickbacks, bribes, or tributes; in kind payments; and free labor." (underline added)
The C.F.R. Title 20 (“Employee’s Benefits") is a collection of regulations belonging to the U.S. Department of Labor. The term, “permanent labor certification application," in the section indicates the Labor Department form, ETA Form 9089 (1st Stage). It does not indicate the Homeland Security Department forms, I-140 (2nd Stage) or I-485 (3rd Stage). Please also note that if a particular attorney does not represent the sponsoring employer in its labor certification application process, the attorney can be retained by the sponsored foreign national, with his own payment, to protect the worker’s interest in the labor certification matter. This is the only regulation in the current U.S. law, which obligates the sponsoring employer to pay the costs incurred in any of the aforementioned 3stages of application proceeding. In May 2007, the U.S. government promulgated this particular regulation to “reduce the incentives and opportunities for fraud and abuse" of the Department of Labor (DOL)’s certification system. Before this regulation, a significant number of foreign nationals paid for the costs incurred in the entire application process, including the labor certification, to obtain the permanent residence in the U.S. As the labor certification is the basis of permanent residence application, the DOL application system was occasionally abused by the employers with commercial interests for “cultivating" and selling labor certifications to foreign nationals with high demand. The Government’s intention behind the regulation is to achieve the integrity of the employment-based immigration program by administering the basic system (labor certification). On other hand, the 2nd and 3rd Stages of application are administered by the U.S. Department of Homeland Security, through its agency U.S. Citizenship and Immigration Services (“USICS"), which is subject to the regulations set forth in C.F.R. Title 8 (“Aliens and Nationality"). Although the 2nd stage application, Form I-140 (Immigration Petition for Alien Worker), is also submitted by the sponsoring employer, the primary purpose of this stage application is to examine the foreign national’s qualifications to perform the duties of the position offered, based on the labor certification approved by the Labor Department. In this regard, it is customary that the foreign national employee hires his/her own attorney to prepare and file the I-140 petition, and pays for the legal service and government filing fees. There are no regulations, in this stage of application, prohibiting the foreign national from paying the attorney’s or government filing fees, or requiring the employer to pay the fees. The last stage application, Form I-485 (Application to Adjust Status), is the foreign national’s individual application. It is not the employer’s. Accordingly, the employer is not responsible for the fees involved in the last stage of application.