QUESTION

What can I do if company won't file i-485 unless I commit another year if green card is approved?

Asked on Nov 19th, 2013 on Immigration - Washington
More details to this question:
My labor I-40 is approved and now that my date is current to file my green card, my company is telling me to sign a one year contract that I will work with them if the green card comes. Only then will they file my green card. All this time, I have worked with them in the hope they would file my green card when the time has come and now this. What are my options? Some of my friends are telling me to do the contract and file green card and when approved to walk away because a company can't really in reality enforce contracts like these. Please help. These people are play with peoples lives. What is my option and is it true what they say that a contract like this is unlawful?
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5 ANSWERS

If you have a copy of your I-140, you do not need to have the employer be involved in your I-485. You file that on your own.
Answered on Dec 04th, 2013 at 9:52 PM

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Adebola O. Asekun
There are several issues involved in this matter and as such, you need to speak to an attorney.The issue regarding a company's insistence that you work for them for a year may not be quite as unlawful as you may think. Just as you do not have to accept those terms, the company also is under no obligation to file a green card for you. And from an immigration stand point, if you accept those terms with full knowledge that you do not intend to honor it, and so, walk away once your green card is mailed, you may face DHS enforcement action because, DHS may allege that you committed fraud because, you never intended to work for the employer who filed your petition. Because, this is an employment based petition, you may think your case is not analogous to the situation where an alien married a US citizen and immediately walks away immediately after getting the green card, but DHS may not necessarily agree. Consult in detail with an experienced immigration lawyer.
Answered on Nov 22nd, 2013 at 10:58 AM

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The contract like this is absolutely lawful and perfectly enforceable. Moreover, it is perfectly reasonable for your employer to demand that you commit to work for them, at least, a year. After all, their petition to the U.S. Government states that you should be given a green card because this company needs you and you agree to work for them. If you are applying for a green card through your employer while you have no intention to work for that employer, you are committing immigration fraud on the Government of the United States. So I suggest you keep your rightful indignation in check: it isn't your company that "plays with peoples lives", it is you who is playing fast and loose with the law.
Answered on Nov 22nd, 2013 at 10:57 AM

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Business/ Commercial Attorney serving Bellevue, WA at Lana Kurilova Rich PLLC
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The default rule is that the employment is at will, meaning you can walk away at any time or your employer can let you go at any time. But if you enter into a contract, that contract is legally binding, and the employer can sue you for damages. They would have to prove that, as a result of your breach of this employment contract, the employer suffered certain damages because they lost a client or they had to hire and train someone else, which always costs money, etc. So an employment contract is legally binding. And it is not unreasonable for an employer to ask for one if they are to commit to the time and expense of sponsoring a green card. If you do not want to work for them, perhaps you can transfer your work visa to another employer and ask that employer to sponsor you (but they don't have to do that, of course). Basically, your employer has no obligation to sponsor your green card, so I do not see this request as anything unreasonable or unenforceable.
Answered on Nov 20th, 2013 at 4:23 PM

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Immigration and Naturalization Attorney serving San Diego, CA
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It would be a shame to lose the labor certification and I-140 but if you did walk away you would need to start a new labor certification and new I-140 with a new company and then recapture the Priority Date. One year isn't that long and after your I-485 is on file for 180 days you are eligible for AC-21 portability; you would need an employment attorney in the State in which you are located to review the contract you sign for its enforceability.
Answered on Nov 20th, 2013 at 4:23 PM

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