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Are there any issues that my employer and I should be aware of in having my employer attempt to sponsor me for a green card?

By January 11, 2022Immigration
Employers congratulating a member who is new to join the team

I have been living in the United States without status for several years, and I have been offered an opportunity to work for a company that is also willing to sponsor me for a green card. Are there any issues that my employer and I should be aware of in having my employer attempt to sponsor me for a green card?

Yes, there are several issues to be aware of in attempting to obtain a green card when you are living without status in the United States.

First, your employer should be aware that unless you are qualified to work in the United States for the employer through a temporary employment immigration status or eligible to receive what is called an employment authorization document, “EAD” your employer can be exposed to penalties for hiring a person with no employment authorization and failing to comply with the required I-9 employee verification requirements.

Second, the fact that you have been living in the United States significantly reduces the possibility that an employer will be able to sponsor you for a green card. Non-citizens present in the U.S. can change their status to legal permanent resident or green card holder if the non-citizen is maintaining a different legal immigration status. This change of status for a non-citizen maintaining legal status can be achieved by filing the proper applications with the immigration service, “USCIS” requesting the change or adjustment of status to legal permanent resident.

Depending on the circumstances of the non-citizen, the process can take one of two paths.

Adjustment of Status:

One path is if the non-citizen is present in the U.S. in legal status, the non-citizen may file an initial petition with USCIS known as a form I-140 based on employment and subsequently after approval of the I-140, file the green card application known as the form I-485 with USCIS to complete the process.

Depending on the employment-based category and the region of the world the noncitizen is from, the process can be done in one filing where the I-140 and I-485 are filed together if there is no backlog in green card availability also known as the priority date being current. You can read more about priority dates following the link here.

Consular Processing:

The other path involves non-citizens who will need to complete the process from abroad which also begins with the filing of the I-140 petition, but when approved, the case is transferred to the Department of State to begin the processing of the immigrant visa which is the travel permit which will allow you to return to the United States where upon entry into the United States, you will be  considered a legal permanent resident.

This path is always considered a two-step process where the I-140 is filed and approved first and then the visa application is filed afterwards. Even if the priority date is current based on the employment category and region of the world, the two steps are processed separately. If the priority date is current upon approval of the I-140, the noncitizen can proceed to immediately file the visa application with the Department State.  If the priority date is not current, the noncitizen is then forced to wait until the priority becomes current to file the second step visa application with the Department of State.

Need for Labor Certification:

Note that in both paths, unless the non-citizen falls into a high level employment category such as an EB-1 or qualifies for a National Interest Waiver where a petitioning employer is not required, all other categories will require applying for a labor certification through the Department of Labor for the government to ascertain that the employer is giving the same opportunity for the position to workers who are U.S. Citizens or legal permanent residents of the United States.

You can read more about EB-1 based green cards here. You can also read more on National Interest Waiver based cases here.

Any exception to the Rule for noncitizens present in the United States not maintaining status?

The problem then presented to an individual living in the United States without status is that since that individual is not maintaining a legal immigration status, that individual will not qualify to apply for the green card from within the United States through the adjustment of status process unless the noncitizen qualifies for an exception to the rule under section 245i of the Immigration and Nationality Act. You can read more about adjustment of status based on 245i eligibility by clicking here.

Consequences of Departing.

Therefore, if no exception applies, the non-citizen will be forced to depart from the United States which will likely create a problem for those non-citizens who have lived in the United States for more than six months with no immigration status. The problem is that the non-citizen will be exposed to a 3- or 10-year bar. 3 years for living in the United States without status for 6 months but less than 1 year and 10 years for living in the United States for more than 1 year. The bar would be triggered upon departure from the United States.

Waiver?

Yes, there is a waiver available to waive either bar, but in order to qualify the non-citizen will need to have either a U.S. Citizen parent or spouse or legal permanent resident parent or spouse and demonstrate to USCIS that the qualifying family member will suffer extreme hardship if the noncitizen is denied the green card application.

The problem with this option is that most non-citizens do not have a parent who is a U.S. Citizen or legal permanent resident or if they do marry a spouse who is a U.S. Citizen or legal permanent resident, it will likely be much easier to have the spouse sponsor the family member for the green card anyway. Certainly, for those non-citizens that do have qualifying parents, the option to apply for the green card through an employer may be a much more efficient path to the green card, especially since green card availability based on a parent sponsor from some regions of the world can take up to 20 years for the priority date to become current.

If you think you may qualify for a green card through an employer, certainly contact us, so we can evaluate your case and confirm that the option is available and to advise of the steps to apply for the green card.

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