With the future of the Deferred Action for Childhood Arrivals (DACA) program uncertain, working immigrants may be nervous about continued employment, and employers may be dismayed by the thought of losing valued employees.
The good news is that even in the worst-case scenario – all DACA renewals are permanently halted – hopefully at least some Dreamers, as DACA recipients are known, could still be eligible for a green card. That’s the permit allowing foreign nationals to permanently live and work in the United States.
“Any U.S. Employer can petition for employment-based permanent residency on behalf of a foreign national whether she/he is or is not a current employee, or even for a foreign national who is outside of the U.S.,” said Joanna Pezet, an attorney for Izaguirre Law Firm, a Colorado Springs-based immigration law firm serving businesses and families.
There are typically three phases to applying for an employment-based green card, and at this time the process takes about two years from start to finish for most of the foreign nationals, Pezet said.
In most cases, the first step is to obtain Foreign Labor Certification through Program Electronic Review Management (PERM). According to the U.S. Department of Labor (DOL), the purpose of PERM is to “protect U.S. workers and the U.S. labor market by ensuring that foreign workers seeking immigrant visa classifications are not displacing equally qualified U.S. workers.”
At the onset of this phase, employers make a prevailing wage request to the DOL. That’s because by law, employers must show that the wages offered to a foreign worker are at least the prevailing wage rate for the job to be filled in the area where the employee will work.
Next, employers must conduct a good faith recruitment search to demonstrate that there are no Americans who are able, willing, qualified and available for the work to be undertaken. Employers must document what they did to advertise the position, as well as results of the recruitment, and make that documentation available to the government if requested.
Lastly, the Employer submits a Foreign Labor Certification Application with DOL. Once PERM Application is certified, the Employer can proceed to the next step.
This phase, the filing of the Labor Certification Application, is technically free, but the employer must cover the cost of the recruitment process.
The “Immigrant Petition for Alien Worker” form, best known as Form I-140, is a document that prospective employer submits to the Department of Homeland Security’s United States Citizenship and Immigration Services (USCIS) to petition for foreign national’s right to work in the US on a permanent basis. It contains information about the organization seeking the approval, as well as the job skills of the person it intends to hire and the candidate’s spouse and children, if applicable. There is a $700 filing fee for this form that is generally picked up by employer.
Form I-485 is an “Application to Register Permanent Residence or Adjust Status” that the prospective employee files. It has a $1,225 filing fee. Form I-485 asks for employment candidate’s information, such as former and current legal names, immigration history, employment history, marital status, and criminal history, verifying foreign national’s admissibility to the U.S.
Once you receive you permanent residency status, a Green Card status, you do not lose it, even if, at some point, you cease to work for the sponsoring company.
“Employment is at will,” Pezet said. “The candidate is not forced to work for the employer and the employer is not forced to hire the person for the job; however, the process is based on the good faith intent to hire the foreign national permanently in the future, once the green card is approved, and the candidate must have a sincere intent to accept the job when it’s offered. Therefore, once the process is completed, and the foreign national is granted permanent residency in the U.S., he or she should begin his permanent employment with the sponsoring company.”
There are many different employment-based green card petition categories, including, for example, exceptional ability, advanced degree, professionals, skilled, and unskilled workers.
“Not everyone will be able to qualify for a green card using this process, but many will, including some Dreamers,” Pezet said.
Izaguirre Law Firm
1287 Lake Plaza Drive
Colorado Springs, CO 80906
1225 N. Main St. Suite 101
Pueblo, CO 81003
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