Can an employer ask for filing/legal fees to be paid back?

[mdh3000]

I think this has been covered here before, but something occurred to me....

I work for a company that requires me to pay back 100% of the costs associated with them sponsoring my green card if I leave before 2 years pass after getting I-485 approval.

From what I understand, the USCIS has made it quite clear that a sponsoring employer CAN NOT pass ANY of the fees associated with the sponsorship onto the employee they sponsor. You usually read about this when it comes to H1-B visas and the like.

However, this situation doesn't seem any different to me. The USCIS says "If a company wants to sponsor an alien, they must pay all associated costs." So I were to leave before the 2 years were up (which I'm not planning too), does the company have any legal recourse?

mdh

 

[TheRealCanadian]

However, this situation doesn't seem any different to me. The USCIS says "If a company wants to sponsor an alien, they must pay all associated costs." So I were to leave before the 2 years were up (which I'm not planning too), does the company have any legal recourse?

I don't see how such a provision in your contract is invalid - the employer is following the law by paying all the costs of the GC process, and they can put something into a contract where they would be reimbursed for said costs under certain circumstances.

 

[Jackolantern]

I don't see how such a provision in your contract is invalid - the employer is following the law by paying all the costs of the GC process, and they can put something into a contract where they would be reimbursed for said costs under certain circumstances.

The law specifically prohibits employers from being reimbursed by the employee for certain immigration-related fees.

The other part that is likely to render the contract invalid (or at least the particular clauses) is the unbounded time frame: 2 years after I-485 approval. Courts are very unlikely to enforce a contract against an employee if it doesn't have a specific end date (or at least an event or milestone that is within the employee's control). They most likely will either limit the time frame to something reasonable, or throw it out altogether. 2 years after I-485 filing might be upheld, but not after I-485 approval which could take an unknown number of years.

If you are worried about this, spend a few hundred bucks for a one or two-hour consultation with a labor lawyer to review the contract and evaluate your situation. If the company threatens to sue you, or decides to hold back your last paycheck, a letter from the lawyer should be enough to shut them up and pay your last wages. You might also be able to countersue them for restraint of trade or some other violation.

 

[TheRealCanadian]

The law specifically prohibits employers from being reimbursed by the employee for certain immigration-related fees.

That's true; it's a question in my mind whether that is a prohibition against blanket reimbursement, or whether repayment in a very specific circumstance is prohibited. Until we get clarification, I think you're probably correct.

The other part that is likely to render the contract invalid (or at least the particular clauses) is the unbounded time frame

Excellent point.

If you are worried about this, spend a few hundred bucks for a one or two-hour consultation with a labor lawyer to review the contract and evaluate your situation. If the company threatens to sue you, or decides to hold back your last paycheck, a letter from the lawyer should be enough to shut them up and pay your last wages. You might also be able to countersue them for restraint of trade or some other violation.

Good idea.

 

[Jackolantern]

Another thing that weakens the contract is whether the employer was promising to keep you employed until 2 years after the green card approval. Courts generally won't enforce anything against the employee for leaving before the contractual period if the contract didn't also specify that the employer was guaranteeing to provide employment for the specified time.

Most of these restrictive contractual provisions are put there just to scare people into submission if they don't know better; in reality, the contracts usually don't have any teeth and the employer usually doesn't plan to actually sue people about it. Once you show that you have a lawyer on your side, they usually shut up (although not always -- a few are really vindictive and will spend $50K on attorney's fees to try to recover the $10K they say you owe them).

 

[mdh3000]

Thanks for the info guys. I had a feeling that it was just an effort by the company to prevent people from leaving after getting their green card. I don't plan on leaving, but I was just curious.

mdh