Law Offices of Susheela Verma :: Immigration Attorneys in Woodbridge and Edison New Jersey (NJ)

Business Immigration: H1-B

  • The ugly side of the PERM process: How to manage the risk you take as an owner of an entity which employs foreign workers and processes labor certification applications through the so called “PERM” process.

  • PERM attestations, the risks you take but may not fully understand: Every Labor Certification application processed by an employer contains employer attestations and exposes the owners to risks which, if known, they may not want to take. Lack of precise understanding and careless drafting of these applications can easily expose the employers and their principals to serious consequences. For example, if certain information is included in the application carelessly it can still be considered a misrepresentation and may lead to an allegation of fraud by the DOL or the Department of Homeland Security. If you are an owner and principal of an employer who processes Labor Certification (PERM) applications, you must personally take interest, become educated and implement a system and process designed to manage and limit your risk. It is important that you do not let the process be controlled and guided by those who do not have adequate knowledge. The in house personnel must be required to adhere to strict guidelines and the legal counsel you engage must be thorough and careful. It must not be left to the discretion of an inexperienced attorney or paralegal.

  • RISKS CREATED BY EMAIL COMMUNICTAION: We do not just file your application, we carefully guide you through the subtle and finer legal issues embedded into the PERM process. We would show you how the carelessness in corporate communication with employees, who are being considered and processed for labor Certification, can lead to creation of evidence against you. It all results from lack of knowledge and procedures and not due to an intent to commit a fraud. It may however be interpreted as an intent to commit fraud and therefore it is important that you do make an effort to acquire relevant knowledge. The lawyers do not watch your daily process, you do. Email communication can be a double edged sword. It can result into formation of contracts in such a form and shape that you did not desire; it can create evidence against the company implying actions on your part that you did not intend; it can lead to creation of a foundation leading to probable cause for criminal prosecution and it can expose you to the liabilities you could not imagine. It is a necessary and important communication tool but, if left uncontrolled and unsupervised, it will create problems for a business and may impact your capability to process applications for immigrant workers efficiently

  • EMPLOYEE EMAILS CONCERNING THE PERM PROCCESS: If you are a company which employs foreign workers, you must have seen the phenomena described in this paragraph. Foreign workers in I.T. industry are valued by their employers. It is common that the employers bend backwards to please them. Employees going through the PERM process routinely send emails to the employers advising and instructing them about their preference for an EB2 employment based classification for the Labor Certification. On the face of it, such communication may appear harmless. That is however not the case. The main objective of the labor certification process is to determine that there was a genuine need for an employee for a specific position; that no qualified U.S. workers could be located and that the employer engaged in a good faith recruitment process. The requirement of good faith is a fundamental element of a Labor Certification. If the process is being dictated by an employee, it will be almost impossible for the employer to prove existence of good faith on its part. The emails on this issue containing dangerous language get exchanged between an employer and employee routinely. If an employer ever gets investigated to such an extent that its emails are targeted and procured by the investigating or prosecuting authority, coming up with a viable defense for such an employer will become an uphill battle for an attorney. Once an email has been sent, it is hard to control its dissemination. It is highly recommended that a company employing foreign workers, who are being processed for H-1B and employment based Green card, takes extra measures to educate its human resource on these issues. It is imperative that the email communication be handled by those who have adequate insight into this area. Those who do not have sufficient knowledge, should not permitted to communicate via email concerning these sensitive matters. The owners and principals being ultimately responsible for the consequences, must take personal interest and must watch the communication. It is advisable to implement a periodic audit process.

  • PERM PROCESS: Payment of cost and attorney's fees by the employee . An employer is responsible for payment of the fees and cost related to the PERM process. The form 9089 is designed to be an affirmation by the employer under penalty of perjury. It asks whether the employer has taken any money from the employee. Answering a question in “No” when money has been taken will expose the employer to an allegation of perjury. If it is answered truthfully, that would be in violation of the law as the employer is required to bear the cost. Again, these issues often are subject matter of email communication. Wrong choice of words can lead to creation of suggestion of wrongdoing. Therefore, care must be exercised. There is no exception to this rule and all the fees and cost for the labor certification process must be borne and paid by the employer. It is not advisable to make deductions form an employee's wages to cover this expense or have any other agreement with the employee to recoup this expense