You receive the good news…
Your U.S. employer has agreed to foot all the legal fees to sponsor you in Employment Based (“EB”) Permanent Status in the United States. What could possibly go wrong? Your position is approved as an EB-2 or EB-3 category I-140 for adjustment of status purposes; and now all you have to do is sit back and wait as your employer and their lawyer handle ‘everything’. Well… not so fast. If you want to know the risks associated with having your U.S. employer’s lawyer handle your delicate status in the United States…keep reading!
First, it’s important to know that from the start you and your U.S. employer have potential conflicts of interest that should be resolved prior to entering into a dual representation. The employer’s immigration lawyer immediately becomes your immigration lawyer but they are there to represent the employer despite conflicts of interest from the outset.
Let’s take a look at a couple of potential conflicts that may arise. One of the most common problems relate to the salary level to be paid. Employers are mandated by law to pay a salary determined by the Department of Labor which may be higher than expected. For instance, if your position requires a Masters’ Degree or higher, your employer will be required to pay a significantly higher salary than if your position requires a bachelors. If the employer’s goal is to save on costs, it’s likely they will opt to sponsor a foreign national beneficiary for a position that requires a bachelors, irrespective of higher qualifications. Also, a position that qualifies for a bachelor degree only places the beneficiary employee in a lower employment based category such as an EB-3 category instead of an EB-2. The resulting ‘downgrade’ is significantly longer wait times due to a lower priority by the Department of State.
Let’s look at another possible conflict that could arise. You are concerned that your employer is not treating staff well, committing ethical violations, or you see the company becomes ‘shaky’; who do you speak to regarding these observations which affects your status and decision to remain with the company?
The above two scenarios have ‘chilled’ employees over and over again. Therefore, we recommend that foreign nationals never rely on the employer’s legal counsel. Always retain your own independent immigration legal counsel who require a small retainer fee to exclusively represent your interest, and provide second opinions along the way. This option has saved our clients much heartache.
If you have any questions you may email us at [email protected] or visit us at www.vasselllaw.com for our office locations and phone number(s). Our U.S. immigration lawyers are available for an initial free 20 minute in office or video consultations both dual and non-dual representation in strict confidence, mindful of not causing unnecessary waves with the U.S. employer.
By ScottVassell Law Group
Where Immigration Lawyers & Innovation Meet for a 21st Century Client Experience!
We are Members of the American Immigration Lawyers Association (“AILA”).