There are three main steps to obtain an employment-based green card:

1. PERM Labor Certification (Assessment of whether or not there are qualified U.S. workers)
2. I-140 petition (Employer petition for permanent foreign worker)
3. I-485 application (Employee application for permanent residence – green card application). This step may include an application for advance parole (ability to leave the country) and employment authorization (ability to work while waiting) filings.

You can find out more information about these three steps by clicking here.

One key thing to keep in mind about Step 1 and Step 2 above is that the entity filing the petition is the U.S. company and not the U.S. worker. In fact, the U.S. worker does not even sign the PERM or the I-140 and is only listed as the beneficiary on these petitions. We receive numerous calls regarding who has to pay the fees for these filings and the answer really depends. Generally speaking though, the employer must pay for the PERM and the employee is permitted (but not obligated) to pay for the I-140 and I-485 petitions.

Does the Employer have to Pay the Fees Associated with PERM?

PERM is the procedure for applying for labor certification. As a first step, the employer is required to show that it could not find a ready, willing and able U.S. worker for the position. This step involves the company making a good faith attempt to hire a U.S. worker through the recruitment process. If the employer is unable to find a ready, willing and able US worker for the position, the company can file a PERM labor certification online with the Department of Labor.
For the PERM process, the regulations are clear and the employer is responsible for ALL fees associated with the PERM process, including recruitment costs and legal fees. The PERM does not have a filing fee so there is no fee to worry about there. Employers typically deal with all of the steps at the same time and we are often asked to draft a contract between the employer and employee that indicates that the employee will repay all permitted expenditures if they leave the company within a certain timeframe. These letters always make it clear that an employer cannot recover PERM expenses from an employee.

Who Pays for I-140 Fees?

Either an employer or employee can pay these fees. This includes both the legal fees and the filing fees.

Who Pays for I-485 Fees?

Either an employer or employee can pay these fees. This includes both the legal fees and the filing fees.
Where employees may pay fees, it is important that both parties understand the financial obligations and responsibilities of each party throughout the process. We regularly draft agreements between the parties and it is important to have these agreements drafted by a qualified immigration attorney.

For more practical or legal advice contact Scott Legal, P.C.. We offer services in a number of business areas including, Immigration, New Business set up, Contract review and development and entrepreneurial support. Call 212-223-2964 or email iscott@legalservicesincorporated.com for a consultation.

To find out more about our immigration and business services, contact Scott Legal, P.C.

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Ian E. Scott, Esq. is the Founder of Scott Legal, P.C. He can be reached at 212-223-2964 or by email at info@legalservicesincorporated.com.


This website and blog constitutes attorney advertising.  Do not consider anything in this website or blog legal advice and nothing in this website constitutes an attorney-client relationship being formed.  Set up a one-hour consultation with us before acting on anything you read here. Past results are no guarantee of future results and prior results do not imply or predict future results.  Each case is different and must be judged on its own merits.

Ian E. Scott is a Harvard Law School Graduate, lawyer and author of Law School Lowdown: Secrets of Success from the Application Process to Landing Your First Job.  Mr. Scott worked as a corporate litigator in the law firm Cleary Gottlieb and currently runs his own law firm Scott Legal, P.C. specializing in Immigration Law & New Business set-up.