In a recent case, DerKervorkian v. Lionbridge Technologies, Inc., the Tenth Circuit Court of Appeals found that an employer owed a fiduciary duty to an employee when the employer agreed to assist in an application for lawful permanent residence (also known as a “Green Card”). In DerKervorkian, Lionbridge offered to assist DerKervorkian in obtaining a Green Card. DerKervorkian had been working on temporary work visa which was about to expire. Lionbridge changed its mind when it discovered that it would have to pay the employee almost double her current salary in order to qualify for the Green Card. So, Lionbridge decided not to petition for a Green Card on her behalf. The Court found this constituted a breach of fiduciary duty, but Lionbridge would not be liable for all damages because DerKervorkian had a duty to attempt to mitigate, or lessen, her damages by pursuing alternative options. In this case, Lionbridge had offered DerKervorkian a lower paid position which would have also qualified for a Green Card. DerKervorkian declined this position, believing it would adversely affect her career and limit her duties. The Court found that, at the trial, a jury must consider how this failure to accept an alternative position contributed to part of her damages.

This case demonstrates how important it is for an employer to ensure they have the proper guidance when assisting with any application for immigration benefits. Employers must take care not to breach the fiduciary duty owed to employees. Such a breach may arise from failure to file an application on time or errors in an application. Although applications for immigration benefits often appear to be simple, the immigration regulations are quite complicated and an employer should always consult a qualified immigration attorney before agreeing to assist any employee with an immigration application.

By Hilary L. Velandia, hvelandia@dsda.com