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U.S. justice system, developed from the common law tradition, is described as an adversary system. That is, an advocate will represent one party against the other as we often see in the courtroom TV drama. However, not every category of the law can nicely fit into the formulae. Notably, administrative legal matters, including immigration law, are generally handled without having to pick a side over the other, hopefully achieving a win-win situation for both parties.
In immigration law, at least in the spirit, all parties that are involved, work towards the common goal. The petitioner seeks the benefit of a foreign worker’s skills and talent or family unity in the case of family-based immigration; the beneficiary also desires to obtain a better job opportunity or living environment; and the immigration services attain the U.S. public policy goals, i.e., foreign talent, family unity, and diversity. For this reason, it is possible in immigration law for one lawyer or a law firm to represent both petitioner and beneficiary and work with the government agencies through dialogue. I personally believe it is one of the rare legal areas where a lawyer can clearly attain benefits for his or her clients and at the same time protect the community interests.
Nonetheless, although infrequent, a lawyer can be put in the middle of an employer and employee or between clients and the government agency. Conflict of interest occurs when the employer believes employing a foreign worker is more costly and he is doing a favor to the foreign worker and when the government bureaucrats decide their job is screening out as many applicants as possible instead of allowing every qualified applicant into the country, quite the contrary to the original intent of the American immigration policy.
For the fear of the possibility of conflict of interest, some lawyers, when retained by the company, decide not to represent the foreign workers, refusing to even discuss the status of cases with the employees. I believe that is a wrong approach. Whether retained by the company or the individual, immigration is about the individual, deeply affecting that person’s life. Also, there is no reason why both parties’ interests cannot be explained and protected. In this article, I will focus on the first kind of conflict of interest, i.e., employer vs. employee, based on my recent experience in H-1B situation. By objectively explaining some of the thorny issues that arise in H-1B situations, I hope to diminish the possibility of the conflict of interest between the employer and employee.
Three-Year H-1B Employment Term
The maximum period a petitioner can ask the Immigration to allow under H-1B is 3 years. As it takes additional cost to extend the H-1B status, it is only natural that the employer asks for 3 years the first time he/she files the petition. However, some employers wonder if by asking for 3 years they are committing to a 3-year employment contract. Filing a petition with the Immigration does not amount a specific labor contract and thus both the employer and the employee are free to terminate the employment. In most of the States in the U.S., employment relationship is governed by “at will employment” and nobody can be subjected to forced employment without specifically agreeing to a contract. Immigration petitions do not change that.
At the end of the three years, unless it is extended, the H-1B employment will naturally end. If the job ends before the end of the H-1B petition approval, however, the employer must report this to the Immigration; otherwise, the employer’s obligation to pay salary can continue. The employee must then leave the U.S or quickly change his/her status.
H-1B Training Fees and Cost
Currently, there is the immigration filing fees are $130, plus an additional $1,000 training fee for employers, which are not higher education or non-profit research institutions. There is also the filing fee for change or extension of status for dependents ($140) regardless of the number of dependents. With the exception of $1,000 training fee, which must be paid by the employer, there is no specific regulation as to who must take care of the filing fees or other related costs.
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Another common question the petitioners have is if the job has to be advertised. The employer must only post two copies of the LCA for 10 business days in the workplace. No other advertisements required. In rare cases, smaller employers who hire many H-1B workers, if determined H-1B dependent, may be required to advertise the job. The employer’s attorney will investigate and determine if the employer is H-1B dependent.
Return Transportation Cost
The law now requires the employer to guarantee the reasonable costs of the return transportation of the alien abroad if the alien is dismissed from employment by the employer before the end of the period of the authorized stay. Some employers wonder why they should be responsible for return transportation of employees who have worked and saved money. Well, there were unfortunate incidents in which some infamous job shop H-1B petitioners had brought in many foreign workers and deserted them abusing their good faith and leaving them stranded. Such irresponsible behavior had caused some aliens become out of status and caused the law to change. In this regard, the transportation costs should only be reasonable and not thousands of dollars as some less traveled employers might imagine, and it does not apply if the alien leaves the employer voluntarily.
Financial Documents
In an H-1B filing, the immigration is increasingly asking (in light of 9/11 and the ‘economic downturn’) documentation re the ‘ability to pay’ the proffered wage to the H-1B employee. Some employers, especially private companies, do not wish to disclose their financial status. There are many kinds of documents that can show the employer’s ability to pay salary, and the options can be explored with the attorney. There is no reason to shy away from filing H-1Bs only because tax returns showed loss or for the fear their financial information will become public. Any financial documents provided are used confidentially and the immigration is the only government agency that will look at them.
Salary
Finally, in order to prevent exploitation of foreign workers, the law requires the employer to pay ‘Prevailing Wage’. There are two levels of wage: beginning level and fully competent level. As it is close to the average of the salary in the employer’s location, such salary level is generally not a big burden on the employer. When it seems unreasonable, however, the employer can explore other salary survey options with the attorney to suit the market reality.
I believe this article covers most of the thorny issues that might arise in employment setting. I have witnessed that when all these issues have been explained and understood, employers and employees usually arrive at a level of common understanding and can work with each other with less conflict. As stated, the relationship between the petitioner and the beneficiary can be and should be a mutually beneficial one at least within the realm of the law.
