Why was the Outside Immigration Counsel Program initiated?
In recent years, the volume of immigration applications that ISSS receives has significantly increased. To maintain excellent quality service and still meet departmental expectations, ISSS and OGC concluded that it would be beneficial to provide Penn departments with options for handling employment-based PR and O-1 applications.
Who selected the attorneys on the list?
Potential firms were identified and interviewed by representatives from OGC and ISSS. Firms were selected after a thorough review based on several considerations, including their familiarity with higher education institutions, successful past experiences representing universities and/or Penn, foreign language skills of staff/diversity of staff, ability to handle a significant workload, ability to work as a team with members of the Penn community, familiarity with issues frequently occurring in Penn's immigration cases, and responsiveness and accessibility.
Why must the University, rather than the foreign national, retain the law firm?
In employment-based immigration petitions, the employer is the petitioner. The foreign national is the intended beneficiary. It is the University that is actually filing the petition with the federal government. The University therefore must ensure that its filings are accurate and consistent with internal policies and procedures.
Can a foreign national prepare and file an employer-sponsored immigrant petition?
No. A foreign national is not authorized to represent Penn legal matters. All employer-sponsored immigration petitions must be prepared and filed by either ISSS or one of the three retained immigration counsel.
Who is responsible for paying the legal fees?
PR: The hiring department will continue to be responsible for paying the legal fees and any costs associated with the Labor Certification Application and the I-140 Immigrant Petition as they belong to the University. The department might pass the fees associated with I-140s (not the fees associated with Labor Certifications per federal regulations) on to the foreign national if there is mutual agreement. Such an agreement would still require the hiring department to pay the legal and filing fees first and be reimbursed later. The foreign national is responsible for his/her own I-485 or Consular visa related costs unless the department is willing to cover the cost. The payment arrangements made between the employing unit and foreign nationals for petitions filed before August 15, 2008 are still valid.
O-1: Since the petition belongs to the employer, it is encouraged that the hiring department would pay for the legal and filing fees for O-1 petitions. However, in the absence of federal regulations governing the O-1 fees, the fees may be passed onto the foreign national employee if there is mutual agreement prior to commencing the O-1 employment. Such an agreement would still require the hiring department to pay the legal and filing fees first and be reimbursed later.
Could the foreign national's salary be reduced to cover the legal fees and costs?
No. The University may not require the foreign national employee to assume or share in the costs associated with preparing and filing employer-sponsored immigration petitions for several reasons. First, when an employer files permanent resident petition it assumes certain obligations including the payment of a certain wage. Federal regulations strictly prohibit the University from deducting from a foreign national's salary its business expenses (including legal fees or costs) associated with filing the petition. Second, legal fees and costs associated with the immigration petitions are a normal and routine part of the recruitment and retention process, just like relocation reimbursement, assistance in finding employment for traveling partners, or costs associated with starting a lab/research program/office. Finally, it is important for the University to establish the primary attorney-client relationship by assuming full responsibility for the legal fees and costs. The department must bear the legal and costs and may not be reimbursed.
Can the department reduce the amount of research, professional development, or other support funds to cover the legal fees and costs?
No. You cannot treat foreign nationals less favorably than similarly situated US citizens or permanent residents. Foreign nationals are entitled to the same benefits and conditions of employment that the University provides to their colleagues employed in the same or similar capacities. It is inappropriate to deduct the employer's costs associated with its immigration petition from funds that the employee is otherwise entitled to receive or is normally given. Reduction of benefits or negatively altering working conditions can lead to allegations of discriminatory or unfair treatment.
How will the department be notified of legal fees and invoices?
OGC will review outside immigration counsel's invoices and forward them to the hiring unit. The hiring departments are required to pay the attorney fees within 30 days from the date of notice from OGC.
Who should the department contact if it has concerns about or experiences problems with an attorney?
If you have questions or concerns with the immigration process (i.e., legal requirements, processing times, etc.), contact Rudie Altamirano, ISSS Director at 215-573-6332.
If you have questions or concerns with the quality of legal services or billing, contact Sean Burke, Associate General Counsel in OGC or call 215-746-5254 or 215-746-5200.
If I have general questions about immigration law, can I call any of the attorneys on the retained immigration counsel list?
No. General immigration questions should be directed first to ISSS at 215-898-4661. You should only contact an attorney on the retained immigration counsel list about a specific matter they have been retained to handle for you. You may contact an attorney on the retained outside immigration counsel list to ask questions about their services (i.e., his or her experience handling similar cases, the amount of time it typically takes him or her to complete this type of case, the firm's language skills, etc.).