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Green Card Repayment - any advice on my situation?

Discussion in 'General HR issues' started by SitoUK, Apr 10, 2013.

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  1. SitoUK

    SitoUK Junior Member

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    Hi there, I am in a slightly complicated situation and was wondering if anyone could give me some advice here, before I go and speak to a lawyer here locally :)

    I've been with my employers here in Seattle, WA since 2010 on an L1 Visa. A year or so after getting here they started the GC process for me. My I-140 just got approved but I am in EB-3, so it is going to be at least another 6 years or so before my permanent residency will be approved.

    I recently decided to move back to Europe and won't need the Green Card anymore. So I don't care about the I-140. However, I had a look at the GC application form I signed in 2010. It contained the following clause which had to be signed. In the current version of this form which I downloaded from the Intranet this clause has been deleted:

    "Repayment Agreement: Currently, the processing time for most cases is 2.5 - 4 years and costs approximately $8,000 - $12,000 in fees which is charged to the foreign national employee's cost center and budget. Accordingly, employees will be required to sign a repayment agreement, where the employee agrees to repay certain legal fees expended by MY COMPANY if s/he terminates the employment agreement or is terminated for any “for cause” reason prior to the approval of Permanent Residence status or within one year following the issuance of Permanent Residence status."

    Now, as far as I am aware I was never asked to sign the repayment agreement that is referred to in this paragraph. However, I did find that form on the Intranet and the following paragraph details the repayment:

    "By offering employer-based permanent residence sponsorship, MY COMPANY is making a long-term investment in your career. Therefore, if you should leave your position during within one year following the approval of your permanent residence, or if your employment with the company terminates for any reason with cause during the above stated timeframe, you will be responsible for reimbursing the Company the expended funds on a pro-rated monthly basis. If you leave the company for any reason with cause prior to the completion of the permanent residence process you will be responsible for reimbursing the company 50% of the expended funds."

    So, I am totally uncertain now. Given that I only signed the first form, which does not specify what exactly you are supposed to repay but did not sign the actual repayment agreement I would assume I cannot be asked for any repayment but of course I am not a lawyer. I will probably at some point simply ask our immigration department about this but would like to avoid doing that at this point, as I haven't announced my departure yet.
    Any advice will be much appreciated. Many thanks

    Sito
     
  2. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: Green Card Repayment - any advice on my situation?

    You need to speak with labor law counsel in your state as the ultimate resolution turns on state law. Generally speaking, however, the PERM regulations of the Department of Labor prohibit the payment (or repayment) by an employee of any expenses associated with a PERM application.
     
  3. SitoUK

    SitoUK Junior Member

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    Re: Green Card Repayment - any advice on my situation?

    Thank you!

    ANY repayment is prohibited? So that includes fees paid to the UCSIS and lawyer fees etc? That might explain why the clause has been removed from newer versions of the application form.
     
  4. futureeb2

    futureeb2 Member

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    Re: Green Card Repayment - any advice on my situation?

    USCIS and I-140-related fees, including legal fees, can be paid (or repaid) by the employee. But the PERM legal fees, recruitment costs, ad costs, etc. (which are often more onerous) can only be payed by the employer.
     
  5. SitoUK

    SitoUK Junior Member

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    Re: Green Card Repayment - any advice on my situation?

    Thanks, that's very useful information. Would you happen to have a link to the relevant section of the PERM regulations?
     
  6. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: Green Card Repayment - any advice on my situation?

    20 CFR 656.12 Improper commerce and payment. The following provision applies to applications filed under both this part and 20 CFR part 656 in effect prior to March 28, 2005, and to any certification resulting from those applications

    (a) Applications for permanent labor certification and approved labor certifications are not articles of commerce. They shall not be offered for sale, barter or purchase by individuals or entities. Any evidence that an application for permanent labor certification or an approved labor certification has been sold, bartered, or purchased shall be grounds for investigation under this part and may be grounds for denial under §656.24, revocation under §656.32, debarment under §656.31(f), or any combination thereof.

    (b) An employer must not seek 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 a permanent 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 attorney represents both the alien 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.

    (c) Evidence that an employer has sought or received payment from any source in connection with an application for permanent labor certification or an approved labor certification, except for a third party to whose benefit work to be performed in connection with the job opportunity would accrue, based on that person's or entity's established business relationship with the employer, shall be grounds for investigation under this part or any appropriate Government agency's procedures, and may be grounds for denial under §656.32, revocation under §656.32, debarment under §656.31(f), or any combination thereof.
     
  7. SitoUK

    SitoUK Junior Member

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    Re: Green Card Repayment - any advice on my situation?

    Thanks again. Given that there are rules against such thing and I haven't signed the actual form I am much less worried about this now...I'll see what HR say when we get to that point and then speak to a local lawyer here if necessary.
     
  8. Ron Gotcher

    Ron Gotcher Attorney at Law

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    That's a good idea.
     
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