Difficult one: Intent and practice

[abu lafya]

This question has been bugging me for a while:

Suppose a I140 sponsored employee has no desire to continue working for his sponsor, he may even hate the position. He might even research possibilities that imply leaving his sponsor (like moving to other cities), prior to getting his GC and after getting it.

However, the employee stays with his sponsor after getting his GC for at least X months (where X can be as large as you want). In addition, the employee might have decided prior to getting his GC what X would be, but kept it to him/her self. When X months expire, the employee makes every attempt to find a new position elsewhere.

Now, the employee clearly had no intent to continue working for his sponsor beyond X months, he/she knew that when he/she gone through CP interview.
However, only the employee's actions can be considered when looking at his case and he/she did continue to work for his sponsor, albeit only for X months.

DISREGARDING practicality of any INS arguments (they don't know of the employee's plan) is the employee still committing fraud?

[JoeF]

Legally, the employee has to have the good faith intention to work for the employer "indefinitely", which means with no intention to change employers, and with an unlimited contract.
Everything else is immigration fraud.
Now, as you pointed out, it is really not possible for INS to know the intentions of a person. However, if that person confides his intentions to somebody else, the person could get blackmailed. For example, it is not unusual that in bitter divorce battles one side tells the IRS about undeclared income of the other side. The same kind of thing could happen in your hypothetical case.
So the person would really have to keep it a secret even to his or her spouse.
As you mention, the only other way INS possibly could find out is by monitoring that person's actions. They usually don't monitor a person, because that's really not possible with millions of Permanent Residents. If they suspect something, e.g., because somebody complained to INS, they probably would ask that person for evidence that he or she didn't plan a change of employers. I have no idea what that would be, but I could imagine that something like buying a house in the current neighborhood would at least be somewhat of an assurance that the person doesn't intent to move to a different city.

-JoeF

[abu lafya]

Don't you think that may be too high of a standard?

Similar to the 10 commandments where 'do not kill' targets actions where 'do not covet' is much more strict/invasive because it targets feelings/state of mind.

I wonder how many people would measure up to this high standard:
"I rather find another sponsor and wait 2-3 or more additional years to get my GC with this new sponsor because I know I want to quit my sponsor. After staying with him for 5 years waiting for GC, from which last few months were unbearable..."

[cpdelin]

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[cpdelin]

Dear Abu lafya: After reading your posting and answer I am still trying to find out, what are you trying to say. Can you make me understand what is the conclusion of this discussion.
Thanks

[abu lafya]

I was suspecting that JoeF's answer is the right one and that current immigration laws are erecting a too high of a standard for immigrants, easily putting immigrants in positions where anyone sane will be breaking the law.

Luckily, these high standards are not enforceable or even detectable.

I think the whole concept of employment sponsorship is flawed and immoral. But even if a person was sponsored by his employer after he/she joined in good faith, you should not go ahead and stretch that relationship for years and years, pending several bureaucrats' approvals, especially for high-tech where more than 2-3 years may be too long.

Also, in the eyes of many employers, GC sponsorship is a $1000-$2000/yr perk to get the company loyal employees for the duration of the process. That's a small investment for them and they got their money's worth by the time the employee gets his freedom, not to mention they can pay him/her less because he/she cannot easily leave fearing several years setback.

[JoeF]

The whole problem of course is that intent is not something that can easily be determined.
Mostly, they just use common sense.
Staying with the sponsoring employer for 6 months or so usually convinces an observer that the intent was to work for the employer.
The same for somebody on a B visa who changes status while in the US: INS becomes suspicious if that happens too soon, because then they assume that the intent was all along to use the new status. 3 months is considered a safe period for changing status (I think it even is mentioned in an INS memo).
I agree that the immigration law is a mess. The whole mess came about through changes in the 90ies, in the anti-immigrant climate that was prevailing at that time. Up until the late 80ies, getting a GC took less than 6 months, so this whole issue of being tied to an employer for years didn't even come up.
It started to get a bit better in recent months, with AC-21 and such. I fear that the events of 9-11 may push the anti-immigrant forces back to the top.

-JoeF