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Cynthia R. Exner, LLC

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Permanent Residence through Employment: Part One

One way to become legal in the US is through an Employer-Sponsor case. Many clients ask, “How can my employer sponsor me if I am undocumented?”

The Employer-Sponsor case envisions a process in which an employer wants to hire a person for a job in the future, when the person becomes legal. This means that the immigrant does not need to be working for the employer-sponsor during the process, and would take the job after the immigrant either obtains an employment card or becomes legal. This also means that an employer can sponsor a person who is not even in the US. (That is the way that the process was designed: that employers would sponsor a person for a future position, while that person is waiting outside the US)

In reality, most undocumented persons are working for their employer-sponsor, without work authorization. Otherwise, why would the employer want to sponsor the person? Most undocumented persons are working for their employer, who wants to sponsor a good employee to become legal in the US. It doesn’t matter if the immigrant is working for the sponsor, or is waiting outside the US.

Anyone can be an employer-sponsor, even if the immigrant is not currently employed by the employer-sponsor, and even if the immigrant is not even in the US.

The first step is to obtain a prevailing wage from the US Department of Labor (USDOL), for the position being offered. An employer-sponsor is not allowed to offer a job as a landscaper at a wage of $3.00/hour, for instance. The US DOL knows the wages for all jobs in the US. The USDOL looks at the type of job involved, the location of the job, how much experience/education the employer requires, and provides a Prevailing Wage Determination. The employer-sponsor must offer the job at the prevailing wage, or higher. The sponsor is not required to be paying the prevailing wage during the process if the immigrant is not even working legally. The sponsor must offer the prevailing wage for the future position, when the immigrant becomes legal.

Next, the employer must advertise the position in a newspaper and on the internet, and try to find a US citizen to do the job, before the job can be offered to the immigrant. (If the job being offered is for a high-level position which requires a college education, the employer may also need to advertise on college campuses, in trade journals and through employment agencies). The USDOL wants to make sure that there is NO US citizen who is qualified, willing and able to take the position being offered to the immigrant, before the job can be certified for the immigrant. This is called the Recruitment Phase.

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Immigration:  Becoming a Permanent Resident without Leaving the U.S.

Many people come to the US and are sponsored by employer-sponsors. 

Juan’s PERM (Program Electronic Review Management) Labor Certification has been certified by the US Department of Labor in Atlanta, GA. 

Juan’s Petition for Permanent Resident status Form I-140 packet has been approved by the US Citizenship and Immigration Services (USCIS).

Now, Juan is ready to have USCIS actually issue his permanent resident visa to him.  When does Juan qualify to have his personal interview for the issuance of his permanent resident visa, or “green card” at his local USCIS office in the state in which he is living, and when does he have to leave the US to have his personal interview at the US consulate overseas in his own country?

Juan lives and works in Stamford, CT and of course he wants to have his interview at the USCIS Office in Hartford, CT.  He doesn’t want to have to fly back to Ecuador, spend money on airline tickets and hotel rooms, or miss days away from his family in the US and his job in the US.  Juan may qualify to have his personal interview, called his Adjustment of Status Interview, in Hartford if he meets one of the following criteria:

Section 245i:  Section 245i of our Immigration and Nationality Act states that anyone who started an “approvable” immigration process (with limited exceptions) before April 30, 2001 is eligible to complete their Adjustment Interview inside the U.S.  If Juan started this process before April 30, 2001, he may be 245i eligible.  If a prior employer-sponsor filed a Labor Certification for Juan before April 30, 2001 but closed the business and canceled that case, Juan may be still 245i eligible.  That old case does not have to have been approved.  That old case only has to have been “approvable” if the employer had kept the business open.  If Juan’s father’s employer-sponsor filed an old Labor Certification before April 30, 2001 and Juan was included in that case, then Juan may be “grandfathered” into Section 245i.  If one of Juan’s relatives filed a petition for him before April 30, 2001, Juan may be Section 245i eligible, or if Juan was included in a relative petition filed before April 30, 2001, Juan may be 245i eligible. 

Lawful Status:  If Juan entered the US legally, and has always remained in legal status in the US, Juan should qualify to have his Adjustment Interview in Hartford, CT. 

When Juan files his final set of papers inside the US, at a designated address depending on his place of residence, then he will be scheduled for his biometrics, or fingerprint appointment at a designated Application Support Center.  USCIS wants to first be certain that Juan does not have a criminal record which would bar him from becoming a permanent resident.  Next, if Juan files for an Employment Authorization Document (EAD card), his EAD card should arrive in the mail to him at the home address he has provided.  When he receives his EAD card, he can take that to the local Social Security Office and file for a Social Security Number.  When he receives his Social Security card in the mail several days later, he can take his SS card, his EAD card and a cancelled envelope proving his residence, along with his valid passport as proof of his identity and apply for a state driver’s license.  It may take USCIS several months to schedule his personal Adjustment Interview in Hartford.

When Juan finally attends the Adjustment Interview, his employer-sponsor DOES NOT need to attend with him.  Juan will meet with a USCIS Officer, and prove that he either is already working for his employer-sponsor in the job, for which he was sponsored, at the salary for which he was sponsored, or prove that he intends to start the job as soon as he receives his permanent resident visa or “green card”. If Juan is married and included his wife and/or children who are all inside the US, then the entire family will attend the Adjustment Interview together.   Juan will be the primary beneficiary and the family members cannot be approved unless/until Juan is approved.  Juan will be asked many personal questions about his job, his prior experience, where he learned to perform the job, his job duties, his daily schedule, his salary; he will be asked to fully explain and provide proof of any prior criminal arrests and convictions, and he will be asked questions about his marriage, where/when/how he met his wife, about their place of residence, etc. all to prove that the marriage is a real marriage and not entered into solely for immigration purposes. 

The Adjustment Interview is the final culmination of years of work and filings with the US Department of Labor and with the US Citizenship and Immigration Services, and should not be handled lightly.  The answers that Juan provides will determine if he becomes a permanent resident, or if he and his family will be placed in removal/deportation proceedings.