When considering whether to sponsor a foreign national for a green card, U.S. companies should know who is responsible for paying which portions of the costs associated with the green card. This knowledge is especially vital for companies using green card repayment agreements, which indicate how much money is recoverable by the U.S. company if the foreign national resigns or is terminated before receiving the green card.
Generally, there is a three-step process to obtaining an employment-based green card for a foreign national: the PERM process, the I-140 Immigrant Petition, and the I-485 Adjustment of Status Application.
Who Pays the Fees for the PERM Process?
The government has indicated that the employer must pay all fees associated with the PERM process. This includes recruitment costs (posting the job in newspapers, online, on a college campus, etc.) and attorneys’ fees. U.S. companies should take this into consideration when writing a green card repayment agreement. If the foreign national resigns or is terminated before receiving the green card, these costs would not be legally recoverable regardless of when the foreign national leaves the company.
The exception to the requirement that the employer must pay the PERM process costs is when the attorney performing the legal work represents the employee but not the sponsoring employer. This rule often does not apply, however, because the attorney will usually represent both the foreign national and the U.S. company via dual representation.
Who Pays the Fees for the I-140 Immigrant Petition?
Either the employer or the employee may pay the costs associated with the I-140 petition. These costs would include legal fees, project costs, and government filing fees. The government does not regulate which party pays these fees. In a company’s green card repayment agreement, these costs are recoverable by the employer.
Who Pays the Fees for the I-485 Adjustment of Status Application?
Either the employer or the employee may pay the costs associated with the I-485 Adjustment of Status Application. These costs would include legal fees, project costs, and government filing fees. The government does not regulate which party pays these fees. In a company’s green card repayment agreement, these costs are recoverable by the employer.
Our firm recommends that companies have a well-drafted green card repayment agreement in hand before considering sponsoring an employee for a green card. For companies who would like to have their green card repayment agreements written or revised, please contact our firm to speak with an attorney about this service.
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Victoria Gentry is an associate attorney with The Immigration Group, P.C. practicing exclusively in the areas of work visas and employment-based green cards. She first became interested in immigration law when her stepfather emigrated from El Salvador to the United States. Now she enjoys assisting corporate clients with a variety of immigration needs including international transfers, visa eligibility, and the green card process. She works primarily with professionals in IT, Engineering, Finance, Pharmacy, and Insurance.