The Risks of Letting your Employees Choose Their Own Immigration Counsel

Some employers permit their foreign national employees to choose their own immigration attorneys to prepare various employment-based petitions on their behalf (e.g. petitions for H-1B, H-3, L-1, TN, E, O-1, P, J-1, or other temporary status, or for lawful permanent residency or green card). While these employers may be well-intentioned they are often inadvertently exposing themselves and their foreign national employees to a variety of risks. These risks stem from any of the following circumstances:

• Information about the company and its employees may not be consistently represented to various U.S. government agencies
• Mandatory recordkeeping may not be completed consistently by the employer
• Policies regarding hiring and sponsorship of foreign national employees may not be applied consistently with regard to each employee
• The employer may not be receiving adequate legal advice from the attorneys themselves due to incomplete information about the company and its other immigration-related filings

The following examples illustrate how piecemeal legal representation poses serious risks to both the employer and its foreign national employees.

Using Inconsistent Duties and Requirements for H-1Bs and Labor Certifications (PERMs)

Employers who file H-1B petitions and labor certifications (i.e. PERMs) must carefully describe the duties and requirements for their positions in order to obtain approval from the US Citizenship & Immigration Services (USCIS) and Department of Labor (DOL), respectively. Employers who use various immigration attorneys in filing these applications run the risk of using inconsistent duties and requirements for similar or identical positions. Both the USCIS and the DOL have the ability to cross-reference the employer’s previous filings and may question the accuracy of such filings if the duties and requirements are inconsistent. This may result in revocations of prior approvals, denials of future filings, required supervised recruitment for future PERMs, and even debarment from participating in the H-1B and PERM programs.

Providing Inconsistent Information or Not Having Accurate Information at Time of Government Site Visits

Employers who sponsor employees in H-1B, L-1 and R-1 status may sometimes receive unscheduled site visits from a Fraud Detection & National Security (FDNS) officer. The FDNS officer usually requests to speak to the employee and to an employer representative, and asks a variety of questions related to the information provided on the specific petition filed on behalf of that employee, as well information about other petitions filed on behalf of other employees (e.g. the total number of sponsored H-1B, L-1 and R-1 employees). An employer which does not centralize their immigration counsel with one attorney and/or firm may not have access to the information it needs to respond to the FDNS officer’s questions, may inadvertently provide inaccurate information, or may provide information that is inconsistent with previous FDNS site visits. This may result in additional scrutiny of its filings and even possible revocation of approved petitions.

Having Inconsistent Policies Regarding Green Card Sponsorship for Employees & Possible Issues of Discrimination

Non-immigrant foreign national employees often ask their employers to sponsor them for green cards so that they may remain in the US beyond the maximum period allowed in their temporary status. The decision to sponsor an employee for a green card is discretionary, and employers often rely on the advice of immigration counsel to decide when and whether to pursue green card sponsorship. Using multiple immigration attorneys to decide whether and when to pursue green card sponsorship, however, may result in inconsistently starting the process for each employee, and consequently may result in possible discrimination issues.

Issues Related to Mandatory Recordkeeping Related to LCA, PERM and I-9

Various aspects of sponsoring foreign national employees for both temporary non-immigrant status and permanent green cards require that the employer maintain certain records for specified periods of time. For example, employers who file H-1B, H-1B1 and E-3 petitions must first file an LCA (Labor Condition Application) with the DOL, which requires that the employer maintain a Public Access File containing specific documentation available for viewing to the public. Employers who file PERMs as part of the green card process must also maintain a record of various documents related to the recruitment and testing of the labor market for a specific period of time. And all employers are required to complete the Form I-9 to verify the employment eligibility of its employees and must maintain certain records for a specific period of time in the event of an Immigration & Customs Enforcement (ICE) audit. Employers who do not use the consolidated advice of one immigration attorney and/or firm run the risk of using different rules to maintain these different records, and expose themselves to a variety of adverse consequences in the event of a DOL or ICE audit.

Difficulty in Calculating H-1B Dependency

Employers who rely heavily on the employment of H-1Bs are considered to be “dependent” and have additional requirements, such as conducting good faith recruitment for US workers prior to sponsoring a foreign worker in H-1B status. An employer is considered to be H-1B dependent if:

• It has 25 or fewer full time employees and more than 7 of them are in H-1B status
• It has between 26 to 50 full time employees and more than 12 of them are in H-1B status
• It has 51 or more full time employees and 15% or more of them are in H-1B status

Certain employees may be exempt from the calculation depending on the employee’s degree, salary and/or the IRS designation of the employer. An employer is required to indicate its dependency status on each H-1B petition filed. An employer who uses the services of various immigration attorneys may not have accurate information with regard to the number of employees presently in H-1B status and which H-1B employees are exempt from the calculation, and may inadvertently provide the government inaccurate information, or may fail to complete the required additional steps necessary if in fact it is dependent.

Issues Related to I-140 Ability to Pay

Employers who sponsor their foreign national employees for green cards file an I-140 Immigrant Petition for Alien Worker with the USCIS, which requires demonstrating that the employer has the ability to pay the proffered wage. The USCIS accepts a variety of documentation as evidence of the employer’s ability to pay, such as annual reports, tax returns, and the employee’s pay stubs. The USCIS may also, however, refer to all previous I-140 petitions filed by the employer on behalf of other foreign national employees, and tally up the total amount of wages that the employer owes to all of its sponsored foreign national employees. If the employer is unable to demonstrate that it has the ability to pay all of the wages for all of these employees, it may deny or revoke the I-140s filed. An employer who uses various immigration attorneys to file different I-140s may not be aware of the total wage obligation it has to its sponsored foreign national employees, and may not be aware of possible issues that the USCIS may raise by comparing previous I-140s filed by different attorneys, thus jeopardizing the green card process for its current and future foreign national employees.

Not Receiving Comprehensive Immigration Advice

Most importantly, an employer who does not rely on the services of a single immigration attorney and/or firm is not receiving adequate and comprehensive legal advice regarding its immigration-related rights, obligations and policies because the various immigration attorneys with which the employer works do not have complete information regarding the employer and all of its filings. Despite the experience and expertise of any particular immigration attorney, it is difficult to provide adequate legal advice in a vacuum. An attorney must be aware of all of the relevant facts regarding an employer in order to provide competent legal advice. Piecemeal legal representation poses serious risks to both the employer and its foreign national employees.

As a result, Minsky, McCormick & Hallagan, P.C. recommends that employers consolidate their immigration representation with one attorney or firm with experience in employment-based immigration matters.  That way, the attorney or firm can provide comprehensive legal advice regarding all of the employer’s filings, rights and obligations, assist the employer in creating consistent immigration-related policies, and provide consistent information regarding the employer to various government agencies.

Additionally, based on our experience, we also recommend that employers internally consolidate oversight of their immigration matters with one or a team of HR employees, managers or other staff members.  Please note, however, that in certain circumstances, it may still be advisable for the foreign national employee to seek counsel from a different immigration attorney, such as in instances where the employee needs a second opinion or where a conflict of interest arises between the employer and the employee. Please contact an attorney at Minsky, McCormick & Hallagan, P.C. if your company is looking to consolidate its immigration representation.