Reason for a lot of discussion and various interpretations among lawyers, experts and consultants of EB3 processes, after all, what can and should the employer pay and what can and should not the employee pay?
Some are categorical in stating that the candidate/employee cannot pay “any amount” of the EB3 process, but this is not quite true.
Everything depends on facts and rules… And it is necessary to analyze each case/situation before saying anything.
As a rule, as specified in the law, what cannot happen is that the candidate pays any expenses related to the “prevailing wage” (vacancy announcement) and “PERM” (Labor Certification) processes.
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§ 656.12 Improper commerce and payment.The following provision applies to applications filed under both this part and 20 CFR part 656 in effect prior to March 28, 2005, and to any certification resulting from those applications:(a) Applications for permanent labor certification and approved labor certifications are not articles of commerce. They shall not be offered for sale, barter or purchase by individuals or entities. Any evidence that an application for permanent labor certification or an approved labor certification has been sold, bartered, or purchased shall be grounds for investigation under this part and may be grounds for denial under § 656.24, revocation under § 656.32, debarment under § 656.31(f), or any combination thereof.(b) An employer must not seek or receive payment of any kind for any activity related to obtaining permanent labor certification, including payment of the employer's attorneys' fees, whether as an incentive or inducement to filing, or as a reimbursement for costs incurred in preparing or filing a permanent labor certification application, except when work to be performed by the alien in connection with the job opportunity would benefit or accrue to the person or entity making the payment, based on that person's or entity's established business relationship with the employer. An alien may pay his or her own costs in connection with a labor certification, including attorneys' fees for representation of the alien, except that where the same attorney represents both the alien and the employer, such costs shall be borne by the employer. For purposes of this paragraph (b), payment includes, but is not limited to, monetary payments; wage concessions, including deductions from wages, salary, or benefits; kickbacks, bribes, or tributes; in kind payments; and free labor.(c) Evidence that an employer has sought or received payment from any source in connection with an application for permanent labor certification or an approved labor certification, except for a third party to whose benefit work to be performed in connection with the job opportunity would accrue, based on that person's or entity's established business relationship with the employer, shall be grounds for investigation under this part or any appropriate Government agency's procedures, and may be grounds for denial under § 656.32, revocation under § 656.32, debarment under § 656.31(f), or any combination thereof.[72 FR 27945, May 17, 2007]Another important point that needs to be made clear is that there cannot be “Double Representation”, that is, the lawyer/representative of the company cannot be the same as the candidate. In short, a professional cannot do the entire process, as this can be interpreted as fraud, since there is a conflict of interest in the process between advertising the vacancy and hiring the candidate.
“An alien may pay his or her own costs in connection with a labor certification, including attorneys’ fees for representation of the alien, except that were the same attorney represents both the alien and the employer, such costs shall be borne by the employer.” This should not be viewed as a green light for the attorney to only consider himself/herself to be representing the alien.But nothing prevents the applicant from paying for their immigration petition process (I-140), as well as the Process Premium and their Adjust of Status (AOS) and their dependents. It is optional for the employer to bear these expenses. However, as stated above, it should be noted that you cannot pay the same professional to work on both sides. The employer is the I-140 petitioner, meaning he or she prepares, signs, and files this form with USCIS. The employee can complete/submit the entire process regarding the Process Premium and AOS, or have a professional/representative, as long as it is not the same as the employer.