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The following article was originally written by Dan Berger, Esq. for college and university attorneys, and was published in the January 2001, issue of Bender's Immigration Bulletin. However, the conclusions about the intersection between employment and immigration law apply equally to private corporations.
A common question that arises at the beginning of the visa process for a faculty or staff member is: "Does the application mean that we are promising a job for the full term of the visa?" Many colleges assume the answer is "yes," and refuse to sponsor an alien for more than the time specified in her employment contract. However, the limited case law in this area is clear -- the intended term of employment on a visa application is NOT a promise of a job for that full term. Colleges may be able to save time, effort and money by reviewing their visa policy with their counsel's office.
Consider the following hypothetical. Rose College regularly hires foreign language instructors on one-year contracts. The College hopes that each instructor will stay for at least several years, and some well-liked instructors with good research credentials are later promoted to tenure track jobs. The College counsel's office and the Dean of Faculty have decided to keep the contracts to one-year to guarantee that they can dismiss an instructor if they are unsatisfied with his performance, or if funding or staffing priorities change. The College hires some of the instructors on J-1 visas. Others who are not eligible for a J-1, or who want to pursue permanent residence, are given the option of obtaining an H-1B. The College does not process H-1B visas in house, but has a general policy of paying one-half of the cost of having a private attorney prepare the visa petition. The College has decided to sponsor each instructor for a one-year H-1B visa. This means that every year an extension petition must be prepared. This policy holds even for those instructors who are very likely to be reappointed because they are popular or are teaching a language where it is difficult to find instructors. Is this necessary? First, any employment-based temporary or permanent visa petition may be withdrawn if the employee is terminated. In fact, when the H-1B visa cap was hit last year, INS had been calling for employers to "turn in" H-1B visas that were not being used so that those visas could be applied to the cap. Furthermore, some immigration lawyers go so far as to withdraw the LCA in addition to the H-1B after an employee is terminated to avoid any chance of continued liability under the LCA attestations. Second, the only provision in immigration law concerning early termination requires that an employer pay the return transportation costs for an H-1B worker if he or she is dismissed before the end of the visa term. 8 C.F.R. Sec.214.2(h)(4)(iii)(E). This provision presumes that there is no legal obligation to keep the worker for the full term of the visa. As a practical matter, H-1B workers at universities tend to be versatile about finding another job if their current position ends. The authors are not aware of any situation where the return transportation provision has actually been used in the university context. Therefore, the possibility of having to pay for a plane ticket home must be balanced against the expense, effort and delay involved in submitting a new petition each year. Complications because of processing delays also arise every time a new petition is filed if the individual wants to travel outside the United States. Given this situation, the only remaining legal issue is whether the visa petition itself creates or modifies the employment contract. This is a matter of employment law, and requires a basic grasp of "at will employment" to understand. Since the late 1800's, the "American Rule" has been that oral employment contracts of indefinite duration are assumed to be "at will. In other words, there is no fixed term, and the employee can be dismissed (or can quit) at any time and for any reason. The courts and legal treatise writers of the time felt that the Rule was necessary to facilitate business in the growing economy. Over the years, several exceptions have been crafted onto the American Rule, but the basic assumption remains that if nothing is said about terms the employment is "at will." Employment law varies state by state in both terminology and details. However, the most important exception is called "promissory estoppel." If the employer (1) makes the employee believe that it is for a fixed term AND (2) the employee acts to his detriment on that belief, then the employer may be held to the fixed term. For example, in the hypothetical above, if the College tells the instructor in his interview that it will reappoint him twice unless his course evaluations are poor, and the instructor buys a house in the area based on that conversation, then the College is likely bound to keep him for 3 years. [Keep in mind that we are simplifying a very complex topic that is the subject of many legal treatises and articles.] How does this relate to visa petitions? Is it not possible that the instructor would "reasonably believe" that he will be keep on for 3 years if he is sponsored for a 3 year visa? The answer, absent other representations, is "No." First, most employment at will disputes arise out of oral contracts, where extensive testimony is required to reconstruct what was said and promised. In most college settings, contracts are in writing, and written by lawyers. These contracts usually address the question of reappointment with language such as "reappointment is not guaranteed, and is subject to staffing and funding needs of the department. No reappointment is currently contemplated for this position." Therefore, there should not be any misunderstanding about the intended length of the contract. Second, Colleges are increasingly requiring employees to sign a waiver or other statement acknowledging the terms of employment. This can be in the form of a statement that the employee has been given a copy of the College's employment handbook, or a basic waiver explaining that reappointment is not guaranteed. Again, the basic safeguards that already put in place by the College's employment lawyers will avoid any alteration of the employment relationship by the visa petition. See, e.g., Woolley v. Hoffman-La Roche, Inc., 99 N.J. 284, 491 A.2d 1257, modified, 101 N.J. 10, 499 A.2d 515 (1985) (disclaimer on company policy manual about employment terms is valid if clear and conspicuous). Court Decisions on the Effect of a Visa Application on the Employment Contract Courts where this issue has been litigated have found that a visa petition by itself does not create or modify an employment contract, even where there is no written contract. There are not many cases directly on this issue, so it is possible to do a complete review to illustrate how strong the employment at will assumption is, and how difficult it would be for any statements made in the visa context to alter that relationship. NAFSANs may wish to share this case summary with their counsel's office when discussing this issue. The highest court to consider this issue was the federal Seventh Circuit Court of Appeals in Geva v. Leo Burnett Co., Inc., 931 F.2d 1220 (7th Cir. 1991). There, the employee had an L-1 visa, and a permanent residence application pending. A new employer offered him a job, and filed an H-1B petition seeking a three-year visa. He was terminated four months later. The terms of employment at the new company were clearly laid out in a written statement presented to him on the first day of work. The statement affirmed that employment was at will, and the employee signed to acknowledge he had received it. Furthermore, it came out at trial that the employee was never told the length of the visa until it was approved. Therefore, the court found that he could not have relied on the three-year term of the visa in deciding to accept the job, or drop his quest for permanent residence with his previous company. A federal district court in Colorado came to the same conclusion. In Van Heerden v. Total Petroleum, Inc., 942 F. Supp. 468 (D. Colo. 1996), a company hired a retail analyst from South Africa. No terms of employment were discussed before the employee moved to the U.S. He entered on an L-1 visa approved through a blanket petition, and the employer support letter stated that the "intended" length of employment was three years. When the employee started work, he was given an employee handbook explaining the terms of employment and stressing that employment was at will. He was terminated a year later. The court found that the employment relationship was not altered by statements in the visa application, particularly in light of the clear, written employee handbook. Moreover, the employee did not know the length of the visa until AFTER he had accepted the job. Therefore, he could not have accepted in reliance on a three year contract. Id. at 473. There is one state case where a court found a binding contract created for the one year term of an approved H-1B visa. Mak v. Artglo, 1994 Ohio App. LEXIS 4754 (1994). However, there was no written contract, and the company promised orally to keep him for that year. In an interesting twist, the U.S. Consulate in Hong Kong refused to issue the visa without a $5,000 bond, and the company president promised on the phone to get him back and assisted in obtaining the bond. The decision does not rely on the visa as an employment contract, but on clear testimony that the employee believed that he was promised a one year job. It appears that the employer's pledge to help with the bond influenced the outcome. Employment Law and Permanent Residence Applications So far, this article has discussed cases regarding temporary visas. The intersection of employment law and immigration law also appears in permanent residency cases. Many colleges go through written contortions in permanent residence applications to avoid having the beneficiary think that he is being promised a "permanent" job. For example, consider a Special Handling application being prepared for a non-tenure track faculty member. A key piece of the application, the job offer letter, has usually been crafted by the college's employment lawyer to avoid liability. Therefore, the letter may state that there is no guarantee a job will be available for the individual after the term of the current contract ends. However, for immigration purposes, the offer must be of "permanent employment." INA Sec. 101(a)(31) (permanent is "a relationship of continuing or lasting nature, as distinguished from temporary"). As a result, an extended cover letter or other documentation is necessary to show the DOL and INS that the job is permanent under the INA. In Francis v. Gaylord Container Corporation, 837 F. Supp. 858 (S.D. Ohio 1992), aff'd, 1993 U.S. App. LEXIS 27731 (6th Cir. 1993), a federal district court found that "vague statements" offering to sponsor the employee for permanent residence do not form a binding employment contract. "[T]o rely on such statements as promises of either continued employment… would be unreasonable." Id. at 861. See also Mortensen v. Magneti Marelli U.S.A., Inc., 470 S.E.2d 354 (N.C.App. 1996) (court rejected the argument that the employee is guaranteed permanent employment because the company said he would be sponsored for permanent residence). The Court of Appeals in Minnesota also addressed this issue in a decision that is not approved for publication (cannot be cited as precedent) but is informative. The court found that filing a Labor Certification application does not lead to an implied promise of permanent employment. Coxall v. First Bank System, Inc., 1993 Minn. App. LEXIS 900 (Sept. 7, 1993). Although the employer sponsored Coxall for permanent residence, the terms of employment were not defined and there was no employment contract. Therefore, the statement in the LC application that the employer intended to create a "relationship of continuing or lasting nature" did not override the based presumption that employment was at will if the terms are not defined. Interestingly, the court explained that the presumption can only be overcome where there is strong evidence that the employee actually expected permanent employment and that the employee acted on that expectation. For example, where an employee made it very clear in the initial interview that he expected permanent employment, and he moved his family from a distance for the job, there is at least an argument that employment at will does not apply. See Eklund v. Vincent Brass & Aluminum Co., 351 N.W.2d 371 (Minn. App. 1984). Again, a clearly worded employment contract or waiver should avoid confusion and litigation about the terms of employment. The courts should not have to look to a visa application or petition to decide terms of the employment contract. Finally, the Nebraska Court of Appeals has addressed this issue in the context of a college hiring a professor. Ling v. Doane College, 1999 Neb. App. LEXIS 210 (1999). Although the court decided that the immigration application did not create an employment contract, it appears that the court misunderstood the Special Handling process, and seems to confuse permanent and temporary visas. Ling, a sociology professor, was hired on an H-1B visa. The faculty handbook stated that all employees would be given 12 month's notice if they would not be reappointed. The 18 month Special Handling deadline was missed, so the College decided to conduct another competitive recruitment and selection process for the position. After, the College dismissed Prof. Ling explaining that he was not the "more qualified" candidate pursuant to 20 C.F.R. Sec. 656.21a(1)(iii). He was not even given the 12 month's notice required by the faculty handbook. The court found that the Labor Certification process was a "supervening impossibility" that kept the College from following its own handbook. The court mistakenly concluded that the College must hire the more qualified candidate after the recruitment. Ling still had 2 years left on his H-1B, and Ling could have been kept on for the 12 months despite the failed Special Handling attempt. Conclusion Overall, colleges and universities should review blanket policies of sponsoring faculty and staff for less than the maximum term allowed in a visa category. With the lifting of the H-1B cap for colleges, it may seem that filing an extension petition is not a great inconvenience. However, if 6 H-1B petitions are filed in 6 years instead of 2, there is a much greater chance that one petition will be lost, delayed, or lead to an unreasonable kickback. Also, during all the time that a petition is pending, travel abroad is complicated. Decisions about the term of a visa should be made in consultation with each college's employment and immigration attorneys, and will probably be on a case-by-case basis. The college must weigh the likelihood and cost of paying return transportation against the possibility that the employee will be reappointed. Clearly, if an instructor will probably only be with the college for a year, there is no need to sponsor him for 3 years. However, significant effort, expense, and time could be saved by using the maximum time whenever possible. |
