Immigration: Does Your Business Need Good Employees?

The first step in the employer-sponsor process for permanent resident status is handled through the US Department of Labor (USDOL)by filing a PERM application. When the USDOL certifies the PERM application, then the employer is ready to move on to the next step of filing the petition for permanent resident status with the US Citizenship and Immigration Services (USCIS).

At the petition stage, the employer must be able to prove that the sponsored immigrant has the required prior experience as indicated on the PERM application; that the employer-sponsor does have a real bona fide position available to offer to the sponsored immigrant; that the employer-sponsor can afford to pay the prevailing wage offered to the sponsored immigrant, and that the employer is a real and viable business entity.

The bona fides of the position being offered to the sponsored immigrant is very important. Almost anyone can sponsor a person for employment in the United States: a person can be a sponsor, a company can be a sponsor, a corporation can be a sponsor, and a church can be a sponsor, to name only a few. The sponsor must be able to show a Federal Taxpayer Identification Number (FEIN Number). However, the sponsor must be viable and the job being offered must be real.

A sponsor can be a brand new business, even with no current employees, but the sponsor must be able to show that the business is real. Sometimes USCIS will want to see rent receipts for the office location of the business, or utility bills in the name of the business, bank statements, internet presence, etc. The sponsor does not have to show that it needs the employee who is being sponsored, but the business does need to show that the job is a real position. The sponsor will need to provide updated letters/statements that the job is still available and show that the business is actually conducting business.

For instance, if Joseph sets up Good Eats Restaurant as a shell corporation which doesn’t have a real location and is not conducting business, then Good Eats Restaurant will not be able to sponsor Juan for permanent resident status. But, if Joseph sets up Good Eats Restaurant, does all the cooking and serving himself and has no employees, Good Eats Restaurant will still be able to sponsor Juan as long as Good Eats is earning sufficient net income to show that it can afford to pay a salary to an employee. If Good Eats Restaurant is doing so well that Joseph can no longer afford to run the entire establishment on his own and has decided to hire an employee that is fine. Joseph does not have to explain why he wants to hire an employee; he only needs to show that he can afford to hire an employee.

At the petition-stage of the process, USCIS wants to be sure that there is an actual job offer, and that the job is likely to exist for a while, so that the immigrant will not lose his/her job and be unable to support himself in the United States. Article by Attorney Cynthia R. Exner, Danbury, CT