08/22/2004: I-140 Permanent Employment Definition and Importance of Employment Contract Terms
The USCIS is growingly taking a hardline position on a number of issues. One of these includes the terms of employment for the I-140 proffered employment. In the past, the employers were not challenged by the INS when the employer stated in the letter that the terms of proffered employment is "at will" and the employment can be terminated with or without good cause by either the employer or employee. Indeed, it is reality that the substantial number of employment contracts include "at will" terms.
Lately, however, the USCIS has been challenging I-140 petition which included a term of employment at will. This is particularly true with the Outstanding Researcher position which usually establishes "permanent"nature of position by the annually renewable term of employment contract. If the employer states that the term of employment is at will, the employer will face a risk of denial of I-140 with the USCIS argument that it is not a permanent employment.
This issue usually involves a conflict between the employer's corporate lawyer who needs protection of his/her client (employer) from potential lawsuit by the employee when the employee is terminated "without good cause" and the immigration lawyer who represents the employer in the immigration proceeding and must established a supposed "threshold" of "permanent" employment. This issue should be resolved carefully within the employer legal team to satisfy the employer's legal protection under the employment law as well as the immigration law. One thing which is obvious is that unlike the H-1B petition, in the I-140 petition, neither the employer nor the lawyer should specifically state that the employment is at will and the employment can be terminated withou good cause by either party!
- from
www.immigration-law.com
