Immigration Problems That Can Block a Work-Based Green Card

A work-based green card case can be complicated by issues that have little to do with the employer petition itself. Overstays, unauthorized employment, unlawful presence, prior entries, misrepresentation, or another inadmissibility issue may affect whether permanent residence is actually possible.
Our firm does not handle routine employment-based green card filings. We advise and represent clients when a separate immigration problem or waiver issue threatens the ability to complete the green card process..

Work-Based Sponsorship Does Not Automatically Resolve Immigration Problems

Employment-based green cards may be based on employer sponsorship or, in some categories, self-petition. But qualifying for an employment-based immigrant category does not necessarily mean a person is eligible to obtain permanent residence inside the United States or safely complete the process through a U.S. consulate abroad.

A separate immigration history problem may need to be identified and addressed first.

When Overstay or Unauthorized Work Affects a Work-Based Green Card

A person may have a valid employment-based petition and still face a separate problem because of the way the person entered the United States, remained after a period of authorized stay ended, or worked without authorization.

Depending on the immigration history and the benefit being sought, these issues may affect whether the person can adjust status in the United States or must complete part of the process through a U.S. consulate abroad.

The key question is not simply whether an employer is willing to sponsor the worker. It is whether the worker’s immigration history creates a legal barrier that must be resolved before permanent residence is possible.

I am an employer. How can I sponsor my workers who are undocumented (entered the U.S. without a valid visa or unlawfully stayed in the U.S. on an expired visa)?

An individual worker will not be able to obtain a green card through employer sponsorship without having to leave the US and process the case at a consulate abroad if s/he:

• entered the U.S. without permission; or
• entered lawfully but then overstayed the allowed time granted and is now out of valid immigration status; or  
• worked in the U.S. illegally (without permission from CIS), unless the person is an immediate relative of a U.S. citizen.

Leaving the U.S. to Interview for the Employment-Based Green Card Can Create a Different Problem

Some employment-based applicants cannot complete the green card process entirely inside the United States and may need to attend an immigrant visa interview abroad.

For a person who has accumulated unlawful presence, leaving the United States can trigger a three-year or ten-year bar to returning. That means an otherwise viable work-based green card case can become much more complicated if the departure itself creates inadmissibility.
Before leaving the United States for consular processing, it can be important to identify whether a waiver is available and whether the immigration history creates any additional risk.

But could INA 245(i) Change the Options for the Undocumented Worker?

Section 245(i) may allow some people with older immigration filings to adjust status in the United States even when unlawful entry, unlawful status, or unauthorized employment would otherwise create a problem.

Although 245(i) is no longer open to new qualifying filings, some people may still be “grandfathered” through a qualifying family- or employment-based petition or labor certification filed before the statutory deadline.

This can matter even when the person is now pursuing a different immigration case. Determining whether a prior filing was qualifying and whether grandfathering applies can require a careful review of the old record and the person’s later immigration history.

When a Waiver May Be Needed

A work-based green card case may be affected by more than unlawful presence. Prior misrepresentation, fraud findings, criminal history, or another ground of inadmissibility may create a separate waiver issue.

In those cases, the employment petition and the waiver are different parts of the overall immigration strategy. The green card path may exist, but the inadmissibility problem must still be addressed.

Why the Worker’s Immigration History Needs to Be Reviewed as a Whole

Problems involving unlawful status, unauthorized work, prior entries, consular processing, old petitions, and inadmissibility do not always fit neatly into one category.

A prior filing may create 245(i) grandfathering. A departure may trigger a bar. A statement made years earlier may create a misrepresentation issue. A person who appears unable to adjust status may have an exception or waiver that changes the analysis.
We focus on identifying those issues, determining which ones actually matter, and developing a strategy around the client’s full immigration history.

There may also be a faster or better immigration option outside of employer sponsorship. A careful review can identify whether a family-based case, prior petition, waiver strategy, or another immigration path changes what makes the most sense.

In some cases, the employer can support the worker by paying for the worker’s consultation with us and, if appropriate, contributing toward legal fees for the separate immigration problem that needs to be addressed.

We focus on identifying the issues that actually matter, comparing the available paths, and developing a strategy around the client’s full immigration history.

When the Employment-Based Path Is Only Part of the Analysis

An employer petition may be only one part of the case. If unlawful presence, unauthorized employment, a prior entry, misrepresentation, or another inadmissibility issue affects the green card process, the first step is understanding exactly what the problem is and what options may exist to address it.

In some cases, the right strategy may involve a waiver. In others, a different immigration path may be faster, safer, or more practical than relying on employer sponsorship alone. We review the immigration history, identify the issues that actually matter, and develop a strategy around the client’s available options.