DEAR Atty. Palacios,
I am a registered nurse who just arrived from the Philippines pursuant to an approved immigrant petition filed by my employer here in California . The U.S. Embassy in Manila issued me an immigrant visa and I expect to get my greencard anytime soon. I signed an employment agreement with my employer but I am now getting better offers from other hospitals. What are the consequences if I fail or refuse to work for the employer who petitioned me after getting my greencard?
Sincerely,
Maria
Dear Maria:
When an employer files the petition on behalf of a foreign national, whether a registered nurse (RN) or not, the package normally includes a letter containing the employer’s offer of full-time and permanent employment to said individual. This letter is a pre-requisite before any employment-based immigrant petition can be approved because it determines whether the employer, from the beginning, has intent to employ the foreign national on a full-time and permanent basis. Please note that absent such intent, the petition will be considered fraudulent or bogus and will be denied.
Generally, before some employers agree to sponsor a foreign national, they require the individual to sign an employment agreement with them, typically for a period of two years. If there is an employment agreement, such document is likewise normally submitted to United States Citizenship & Immigration Services (USCIS) because it serves as evidence not only of employer’s intent, but also of the foreign national’s intent to work for the employer on a full-time and permanent basis.
In your case, the petition filed by your employer on your behalf was approved and you were issued an immigrant visa by the U.S. Embassy on the basis of your employer’s representation that there is a full-time and permanent employment as an RN that awaits you in California and on the basis of your representation that you intend to work for said employer as an RN on a full-time and permanent basis upon your arrival in the United States.
Therefore, to maintain lawful permanent resident status (LPR) status, it must be shown after your admission that there was in fact a genuine offer of employment and a genuine intent on your part to work for that particular employer that petitioned you. To establish this, we normally advise our clients who have been admitted into the United States by virtue of an employment-based petition to work and continue working for that particular employer for a reasonable period of time. As to what period of time is considered reasonable, some lawyers opine that 180 days is sufficient but the USCIS has not yet issued any guidelines regarding this issue. To play it safe, we usually tell our clients to work for at least a year from time they received their greencard.
Failure or refusal on your part to work full-time for your employer for a reasonable period of time, unless due to justifiable circumstances, may result in the latter taking an adverse action against you, e.g., filing with the USCIS a complaint indicating your lack of genuine intent to work for the company, as well as the filing of a complaint with the superior courts of California for breach of contract.
If the USCIS finds out that you did not work at all or you only worked for a very short period of time as an RN for the petitioner that sponsored you, there is a risk that it might initiate actions leading to the revocation of your LPR status as well as those of your derivative beneficiaries. Even if the employer did not file a complaint against you with the USCIS, the USCIS could still find out a few years later that you did not work at all or you only worked for a very short period of time as an RN for the petitioner that sponsored you when you apply for naturalization or file a petition for a family member.
Further, please note that the employment agreement you signed with your employer constitutes a binding contract between you and your employer. By virtue thereof, you have voluntarily bound yourself to comply with the terms and conditions contained therein and should you breach any of its terms, you may be held liable for a substantial amount of monetary damages.
If you want to know more about this topic, please feel free to call us at (818) 956-8844 [ Glendale ] or at (626) 331-8188 [ Covina ] to schedule an appointment for your free initial consultation, or visit us at www.palacioslawfirm.com.
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Attorney Eugene M. Palacios is the founder and principal of the Law Offices of Eugene M. Palacios, APLC. He has great depth of experience and a successful track record in handling employment and family-based petitions as well as PERM and naturalization applications. He is licensed as an attorney in California and is admitted to practice before US Immigration Courts, the US Central District Court, and California State Courts. He is also an active member of the American Immigration Lawyers’ Association. His offices are located at 100 North Brand Boulevard, Suite 600, Glendale, California 91203 and at 800 South Barranca Avenue, Suite 250, Covina, California 91723.
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The above article does not, and is not intended to, constitute legal advice for a specific immigration problem and does not create an attorney-client relationship between our office and the reader. It is for informational purposes only and reflects our law firm’s opinions and views on general issues.
( Published on March 20, 2009 in Asian Journal Los Angeles p. C2 )
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