PERM / EB-2 / EB-3 Employer-Based Green Card
Very often, we get a call from a foreign national who is either a DACA-recipient or has a pending asylum case seeking to obtain a green card, but they are not married to a US citizen and do not have any US citizen relatives. They are surprised to know that if an employer is willing to sponsor them for a legitimate position, for which they are qualified, they can obtain a green card.
There are many employers out there willing to sponsor you for a green card, especially if you are currently working with them and doing a good job. The four main reasons we have seen employers be reluctant to sponsor someone are: 1) they do not want to expend time and money on a foreign national who has never worked for them; 2) they are intimidated by the process having never done it before; 3) they do not want to be burdened by adding something else to their regular duties; or 4) they are concerned about the cost.
Our response to each of the above are: 1) the best sponsors are those for whom you are worked or if there a family or friend who owns a business and can offer you a position for which you are qualified; 2) with our firm, 990% of our employers are “first-time filers” so we hand-hold them through the process- they just have to follow our guidance; 3) we make the process as painless for the employer as possible – often all they have to do is to “REVIEW” and “OKAY” our filing; and 4) although we prefer that the employer pay for the entire process, it is possible for the foreign national to pay for part of the process.
Although the PERM process requires employer sponsorship, the sponsor does not have to be your current employer; since it is for a future position, the sponsor could be a different employer, including a previous employer.
The Difference Between Being “In Status” and “Accruing Unlawful Presence”
There are a few things to know about the employment-based process if you are considering it. But before we delve into those fund details, it’s important for you to understand the difference between being “out of status” and “accruing unlawful presence” for purposes of triggering the 3-year and 10-year bars.
Think of being “out of status” as being “out of nonimmigrant status,” such as when you remain in the US beyond your authorized period of stay. So if you graduate on F-1 status, but never leave the US. Or, you complete your J-1 contract as an Au Pair, but never leave the US. Or you enter on B-2 tourist status, and stay beyond your six month authorized stay. In the first two examples, you are “out of status,” but not “accruing unlawful status”; in the third example, you are both “out of status” and “accruing unlawful presence.”
Unlawful presence begins counting after age 18 and after your nonimmigrant status has ended (you pass the date on your I-94). Although it is possible to be “out of status,” but NOT “accrue unlawful presence,” it is not possible to be accrue unlawful presence while being “in lawful status.”
So how do you end up being “out of status,” but not accruing unlawful presence?” It all depends on the type of visa status you were given. Visa statuses such as J-1, F-1, A and G, do not accrue unlawful presence because their authorized periods of stay are “Duration of Status” (D/S). If you stay beyond the length of the contract (this includes dependents), then you are considered to be “out of status” for purposes of filing a green card in the US, and therefore are ineligible to adjust status. BUT, if you have D/S and stay beyond your authorized period of stay, you will not accrue unlawful presence. This is very important because if you choose to depart the US, you will not trigger either the 3- or 10-year bars. If you are unsure whether you have D/S, please look at your I-94; if it says “Duration of Status” (D/S) on your I-94, then you will not accrue unlawful status if you remain beyond the your authorized period.
Example: Dina enters the US on F-1 status. She graduated with a Bachelor’s Degree in Biology and uses her STEM OPT to work as a research assistant at the NIH. Before her OPT-EAD expires, she applied for the H-1B lottery, but is not selected. After her OPT-EAD expires, Dina remains in the US. Dina is “out of status,” but does not have any unlawful presence since F-1 status is D/S and does not accrue unlawful presence after her overstay.
Example: Amy arrives in the US on F-1 status and graduates with her degree in Computer Science. Shortly before her status ends, she applies to change her status to B-2 tourist so she can spend time traveling the US before returning to her home country of Switzerland. Her change of status is approved, and she is given a 6-month stay. Amy travels all over the US and doesn’t notice that she has to sell her furniture, ship her personal items back to Switzerland, and turn in the keys to her apartment. Unfortunately, she overstays by one (1) month beyond her B-2 authorized period but then departs the U.S. Although she entered on F-1 student status which had an authorized period of D/S, she filed for a change of status to B-2 tourist, which had a 6-month end date on her I-94. She remained in the US for one month beyond her authorized period and has thus accrued one month of unlawful presence.
Example: Naomi arrives in the US from Congo on a J-1 visa to work as an Au Pair. Her sponsoring agency places her with 3 different families during her two-year stay in the US. After finishing her employment with the third family, Naomi meets Andrew, a US citizen, on a dating app. She wants to marry Andrew but feels that Andrew is just “stringing her along” because after 5 years, he will not commit to marriage. Even though they live together, he still hasn’t “popped the question.” Recently, she found that he is still on the dating app. Furious at him (and herself), she dumps him (good for her), packs up her personal things, and flies home to Congo. Naomi was “out of status” after her employment ended, but did not accrue unlawful status J-1 is given “D/S.” Since she did not have any unlawful presence, her departure from the US did not trigger any 3- or 10- year bar. Naomi can consular process for a new nonimmigrant visa, however, she could face a denial for having overstayed her last visa by multiple years, not having strong home ties to Congo, and being from a country that many foreign nationals do not want to return to.
Example: Marco arrives in the US on J-1 status and works as a lifeguard. After his contract ends, Marco does not want to return to his home country of Serbia. He stays in the US and opens his own construction business. Over the past 12 years, his business has grown by reputation and is doing very well. Marco makes a six-figure salary and pays personal and corporate taxes. Marco is “out of status,” but does not have any unlawful presence.
Now that you understand the difference between being “out of status” and “accruing unlawful presence,” let’s get to the exciting part!
Adjusting Status from An Employment-Based Immigrant Petition
To qualify for adjustment of status (applying for a green card in the US), from an employment-based petition (Form I-140), a foreign national must be “in lawful status” at the time the green card is filed. So if you are in F-1 student status, or B-2 tourist status, or any other valid nonimmigrant status, then you are considered “in status” for purposes of filing your green card in the US (adjustment of status).
Unfortunately, neither DACA nor a pending asylum (Form I-589) is considered “in status” for purposes of filing your green card in the US (adjustment of status). Apart from giving you a work permit, having DACA status or a pending asylum case, have an added benefit of STOPPING the accrual of unlawful presence.
Example: Suzanne is brought to the US illegally (without inspection) by her mother when she was 1 year old. She obtained DACA when she was 16 years old and has maintained it for the past 8 years. Suzanne does not have any unlawful presence. Although she was brought to the US without being lawfully inspected and admitted, she was under 18 when she entered and since unlawful presence begins to accrue after age 18, she does not have any unlawful presence from age 1 to 16. Because she received DACA when she was 16 and maintained it, DACA stopped any unlawful presence from accruing (which would have begun counting after age 18), she does not have any unlawful presence from age 16 to 24 (her current age). Despite not having unlawful presence, Suzanne is “out of status” and thus ineligible to adjust status.
Example: Collin enters the US on B-2 status. Before his 6-month authorized stay expires, Collin applied for asylum because he fears returning home to Venezuela. It has been 5 years and USCIS still hasn’t scheduled an interview for him because his case is now in “backlog.” Since Collin filed for asylum before the expiration of his 6-month stay, Collin does not have any unlawful presence. Despite not having unlawful presence, Collin is “out of status” and thus ineligible to adjust status.
Example: Jose enters the US on B-2 status. He hired an immigration attorney to file his asylum application. The attorney files the asylum case two months after his authorized stay expires (as listed on his I-94). After his asylum application has been pending for 6 months, Jose applied for his work permit and receives it. He finds employment working as a landscaper for 10 years. Jose has only two (2) months of unlawful presence since the attorney filed his asylum case two months after his I-94 expired. Once his asylum case was receipted, the unlawful presence clock stopped. Jose is “out of status” and has two months of unlawful presence, so he is ineligible to adjust status.
In all three of the above cases, the foreign nationals are ineligible to adjust status, but this does not mean that they cannot obtain a green card. Keep reading to learn more…
Consular Processing for Your Employment-Based Immigrant Visa
Just because you cannot adjust status in the US does not mean it is the end of your green card journey. It may be possible to consular process abroad (in your native or third country) for an immigrant visa. Once you receive your immigrant visa in your passport, and arrive in the US, your green card (and social security card) will be produced!
BUT…you MUST make sure that you do not have 180 days or more of unlawful presence. It is okay to be “out of status” for 180 days or more (such as staying beyond on your J-1, F-1, etc.) and depart the US, but if you overstayed the date on your I-94 by 180 days or more. Obviously, you also have to meet the other “admissibility” criteria to obtain your green card.
The key to knowing whether you can obtain a green card is calculating how much unlawful presence you have so you can safely depart the US (to consular process for your immigrant visa) without triggering any bar. If you have more than 180 days of unlawful presence then depart the US (you must depart to trigger the bar), then your departure triggers a 3-year bar from this country. If you have more than 1 year of unlawful presence then depart the US (you must depart to trigger the bar), then your departure triggers a 10-year bar from this country.
Example: James was brought to the US illegally when he was five (5) years old. James received DACA status when he was 18 years and 3 months old and has renewed it ever since. James graduated with a Bachelor’s degree in Architecture and obtains a job as an architect with a prestigious architectural firm in Washington, DC. Having worked with them for 3 years using his EAD, the employer is super impressed with his work and wishes to sponsor him for a green card. The employer requests a prevailing wage determination, which states that an entry-level architect must be paid $70,000. During the recruitment process, there are no qualified applicants. The employer submits a PERM application which is eventually certified. The employer receives an approval of the immigrant worker petition which requests consular processing in James’ native country of El Salvador. USCIS sent the case to the National Visa Center. James submits the immigrant visa application and additional required documents. After 5 months, James receives his interview notice via email. Within two weeks, James attends his medical exam and prepares his documents for the consular interview. At the interview, James is questioned about his current sponsor, his education and experience, and is also asked why he was unlawfully present for 3 months. James passes his interview after which he is issued an immigrant visa. Over the next three (3) months, James sells his car and gives up his apartment in San Salvador, then arrives in the US. James receives his green card and social security card within 90 days of arrival in the US. Although James entered the US without inspection, he has accrued only three (3) months of unlawful presence which began counting after age 18, but stopped counting when he received and maintained his DACA status. When James departed the US, he did not trigger any bar, but he did have to explain his unlawful presence. James received a 6-month immigrant visa and chose to tie up loose ends before returning to the US.
What Are the Steps of the PERM process and How Can Your Firm Help?
The PERM process is a 3-step process that can span 2 to 3 years. It involves requesting a Prevailing Wage Determination (PWD), then conducting the recruitment, then filing the Application for Permanent Employment Certification. Much too often we see cases from other attorneys who are denied at the I-140 stage, green card stage, or pretty commonly at the naturalization stage!
Knowing that the PERM process is a “snowball” effect (the information in the first step is carried through all of the subsequent steps), we work with the employer create a Master Document that the employer and employee certifies so that we have a seamless transition through each step. This is also how we detect any “red flags” that we address BEFORE Step 1 is filed. This document contains key information such as the job title, the best SOC code, the duties, the job requirements, the foreign national’s employment and educational history (to ensure he meets the job requirements). After close to a year, you do not want to get to the PERM stage and discover that the foreign national does not meet the job requirements.
Employers love to work with us because we do our best to ensure that the job duties and requirements will give us a PWD that will fall within the range provided by the employer. The last thing you want after getting the PWD back, which took nearly a year to receive, is a salary that is much greater than what the employer is willing to pay.
We also request proof of the degree, the resume and past employer experience letters (if using experience to qualify the foreign national) to ensure we have everything needed for the last step – you do not want to get to the PERM stage and then discover that the foreign national is unable to provide proof of his qualifications, which is something that we have seen happen with other law firms.
We sometimes draft past employer experience letters and sometimes edit the foreign national’s resume because we know USCIS examines these at I-140 stage, green card stage and even naturalization!
What is the Next Step After My Immigration Petition (Form I-140 is Approved)
This step gets a little complicated because these cases are subject to a quota. If adjusting status, USCIS may allow you to file your green card and work permit, but will not decide the green card case until the quota is open. Once the quota opens, then USCIS will adjudicate your green card case.
If consular processing, the quota must be open. Unlike with adjustment of status, there is no way to apply for a work permit. When the quota opens, the National Visa Center (NVC) will issue a case number and invoice, and after payment, you will need to submit (electronically) the immigrant visa application and additional documents. When the interview notice is issued, you will use it to schedule your medical exam. Once you attend the interview, pass it, and arrive in the US, your green card and social security card will be mailed to you within 90 days of arrival.
What Advice Can You Give Me?
Always maintain your nonimmigrant status throughout this entire process so you are able to adjust status! Do not do anything that could make you “inadmissible” for a green card! Schedule a consultation with us!
Want to get more information about the PERM / EB-2 / EB-3 process? Email us to request a paid consultation so we can explain the process and guide you on what to tell your potential sponsor. Or would you prefer to have us chat with the potential employer directly? Give them our email or phone number and have them contact us for a brief, courtesy 10-minute call so we can quickly tell them more about the process, ask a few questions, and maybe even answer their questions!
