How employers can sponsor workers for green cards

Q. Can I sponsor my employee for a green card?

Jules, San Fernando Valley, Calif.

A. U.S. law allows for employers to sponsor needed workers. We call these “employment-based” green cards. With limited exceptions, to get an employment-based green card, an employer must prove that no qualified U.S. workers want the job. The employer must make a good faith effort to find a qualified U.S. worker ready and willing to do the job, and the employer must offer the job at the prevailing wage. That’s the wage normally paid for workers doing the job. The employer can’t offer less just to discourage qualified workers from applying.

If your employee is here unlawfully, employer sponsorship likely won’t work. That’s because if the worker has been here without lawful status for more than 180 days, or he or she entered without being inspected by a U.S. border officer, the worker must return home for an immigrant visa interview. Then, the worker will be barred from returning for at least three years. The bar is 10 years if the worker is here unlawfully one year or longer.

The law provides for a waiver of the three and 10-year bars but only to those who have a U.S. citizen or permanent resident spouse or parent.

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Q. If my wife travels abroad while her green card application is pending, will she face the “unlawful presence bar” you’ve written about? I’m a U.S. citizen sponsoring my wife for a green card. She came here legally but has been out-of-status for five years. She wants to go to Brazil to visit her family.

D., Los Angeles

A. If your wife travels abroad with USCIS travel permission, called advance parole, the unlawful presence bar will not apply.

Usually, when an out-of-status person leaves the United States after having been here unlawfully for more than 180 days, the law bars them from getting permanent residence unless they get a waiver of the unlawful presence bar.

However, if the individual travels with advance parole, the unlawful presence bar does not apply. Once you naturalize, your wife can apply for permanent residence and simultaneously apply for advance parole. Once USCIS grants her advance parole, she is free to travel abroad.

Allan Wernick is an attorney and senior legal adviser to City University of New York’s Citizenship Now! project. Email questions and comments @allanwernick.com. Follow him on Twitter @awernick

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