Permanent Residence through an Employer-Sponsor Part 2

One way to become legal in the US is through an Employer-Sponsor case. Many clients ask, “How can my employer sponsor me if I am undocumented?”

The first step in the employer-sponsor process is called the PERM process. The PERM application is filed with the US Department of Labor in Atlanta, GA and requires the employer to advertise for the position being offered so that the general public is able to apply for the job. If no one applies, or if the employer does not receive any satisfactory applicants (according to USDOL guidelines), then the USDOL certifies the PERM application; stating that no US citizens or legal persons are available to fill the position being offered.

After successful receipt of the certified PERM application, the employer can then petition US Citizenship and Immigration Services (USCIS) for the undocumented worker. When the petition for permanent resident status is filed, the employer must be able to prove that the sponsored worker met all of the requirements for the job being offered, before ever working for the sponsoring employer.

For instance: Juan has been working for Good Eats Restaurant as an Assistant Cook for 4 years. Good Eats Restaurant is sponsoring him as an Assistant Cook and has received the certified PERM. The certified PERM states that the Assistant Cook must have 2 years of experience. The 4 years that Juan has spent working for Good Eats Restaurant DO NOT COUNT! Juan must show that when Good Eats Restaurant hired him, he already had 2 years of prior experience as an Assistant Cook before ever working for Good Eats Restaurant. The reason for this is that the job is being offered now to all US citizens and the US citizens are required to have 2 years’ experience in order to be considered for the job. If Juan was originally hired with no prior experience, then there are more requirements placed on US citizens then were placed on Juan.

Therefore, Juan must show that he worked for a different restaurant or facility for 2 years before ever working for Good Eats Restaurant. Perhaps Juan worked at another restaurant, or worked as an Assistant Cook back in his country. USCIS will require Good Eats Restaurant to provide independent documentary proof of Juan’s prior experience; such as an affidavit from the prior employer, or payroll records from the prior employer, or W-2 form or 1099 form from the prior employer, etc. This may not be easy to obtain from the prior employer if Juan was working illegally without employment authorization when he worked for the prior employer. Many prior employers don’t want to get involved, or don’t want to subject themselves to any fines or penalties by attesting to having employed unauthorized workers in the past. Perhaps Juan’s prior employer has closed the business. Good Eats may have to find out if the prior employer sold the business to a new owner or if the old employment records still exist, or if the prior owner of the business remembers Juan and is still available and willing to sign an affidavit. This becomes even more difficult when the prior experience occurred outside the US.

Some jobs require no experience on the PERM application. But, if the job being offered does require experience, it is important to understand that this means prior experience before ever working for the sponsoring employer, with limited exceptions. Submitted by immigration attorney Cynthia R. Exner, Danbury, CT.

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