This Wisdom of the Crowd (ACC member discussion) addresses employee reimbursement agreements for permanent residency (Green Card) applications, under US law. This resource was compiled from questions and responses posted on the forum of the Employment & Labor Law ACC Network.*
Question:
Has anyone required an employee to sign an employee reimbursement agreement for the costs an employer has expended to go through the permanent residency application? I'm thinking of something akin to a loan forgiveness agreement, where if the permanent residency is approved, the employee agrees to pay back the company a portion of the costs expended (with the percentage owed reduced for each year the employee stays with the company) if s/he voluntarily leaves employment within a set number of years.
Interested in thoughts, positive and negative, and if someone has by chance used something like this a possible sample agreement.i
Wisdom of the Crowd:
Response #1
We have been dealing with this issue and have implemented a claw-back provision in the event the employee leaves. Essentially we make it a term of the promotion or job offer that we will pay for application and if they leave before granted it is paid back in full, if they leave within X number of years following their receipt of the green card then it is prorated. The average number of years it takes for that nationality to receive a green card (exa: citizens from India/China = 10 years) affects the number of years we require the employee to stay, etc. We also will not pay for any dependents visas/green cards.ii
Response #2
I would just add that, the last time we checked into this (a few years ago), not all costs were recoverable - you could only recoup the I-140 (immigration petition) and I-485 (application) fees, not the labor certification costs.iii
Response #3
Yes, we routinely require employees to sign a claw-back agreement for the costs of the Green Card application. It is no small obligation on the employer, and since the employee is tied to you while on an H1 visa, but free to bolt as soon as the Green Card comes in, it is quite reasonable for the company to expect reimbursement if the employee leaves (voluntarily) within a defined period of time (24 months). The problem, of course, is enforcement of the agreement, since the costs of suing the employee and collecting a judgment are prohibitive and it's generally unlawful to withhold the money from a final paycheck (in some states you may be able to not pay out unused paid days off). But, in concept it's perfectly reasonable and lawful to ask the applicant to sign off on a pay-back agreement.iv