--Posted 2/1/05--
Q- My company has filed application for my greencard in Sept. 2004. Is it correct that I need to refile application for greencard if application doesn't get labor certification before March 31, 2005.
A- You may have heard that the Department of Labor has instituted a new labor certification processing procedure called PERM. PERM will be implemented March 28, 2005. Howevery, any labor certifications filed prior to that date under the old regulations will continue to be processed under the old rules. Therefore, your labor certification should continue to be processed and your company is not required to file a new one.
It is possible for your company to withdraw and re-file your labor certification application under PERM after March 28. However, it is strategically complicated to decide whether a particular labor cer should be withdrawn and re-filed. Your company should discuss the possibility with an immigration lawyer before doing so.
Meanwhile, they always have the option of letting the old labor certification application go through without filing a new one.
Q- I know of someone who worked without authorization and is now in the process of applying for a work based visa. What are the chances that they will be denied, and what are their options?
A- There are a couple of factors that would influence how I answer this question:
1. Whether the person is currently in the United States. If the person is currently in the United States in a different nonimmigrant status that does not permit him to engage in the work, and he violated his status by working, he would not be eligible to change status by mail in the U.S. In order to change status, you have to have maintained the status previously accorded to you. Or, if the person is in the United States and is not in any nonimmigrant status (e.g. entered the U.S. without inspection or his status has expired), then the change of status cannot be approved either, because there is no status to change from.
If the person who engaged in work without authorization thereafter left the U.S. and a prospective U.S. employer has now filed an employment based petition on his or her behalf in the U.S., or the person has applied for status directly at a consulate abroad (for example, an applicant for R-1 religious worker status can apply directly at the consulate), there may be less of an issue about the previous unauthorized employment. Since the person is not applying for a change or extension of status in the U.S., the question does not arise whether they maintained the status previously accorded to them. However, the form DS-156 which is used for a visa application at a consulate asks whether you have ever violated the terms of a previous visa. If this question is answered falsely, it is considered fraud, and if it is answered truthfully, it could be grounds for the consulate to deny the visa. If the person who worked without authorization is a Canadian citizen, then he/she is not required to obtain a visa prior to entry, and it is far less likely that the issue will be raised.
2. Whether the person was honest about the unauthorized employment in the work visa application. If the person failed to disclose the unauthorized work in the application for status, then it is possible that the application will be approved, if otherwise approvable. If the unauthorized employment is not disclosed, the issue might still be raised if, for example, the person reports not working at all, because the officer adjudicating the application could raise the question of how the person has been supporting himself. If the application was prepared so as to avoid the issue coming up (i.e. fraudulently), it may be approved, but the issue could come up on a subsequent extension of status or change of status request. Or, if the person wishes to remain in the U.S. permanently, the issue of the previous fraud could come up during the adjustment of status or consular processing application; or even in the course of an application for naturalization to U.S. citizenship. If it ever comes out that there was a fraud committed, this could be grounds for denial of future immigration benefits to the person.
In short, unauthorized employment makes it much more difficult to receive future immigration benefits. As to the chances of whether a particular application will be approved or denied, it is difficult to give any kind of statistics, as there are different factors in play that can influence the outcome of a case. The best idea is for the person to leave the U.S. and have the employer apply for them while they are abroad, and then file a visa application at a consulate (assuming a visa is required). There is no guarantee the consulate would approve the application, but if the application is filed to change status in the US, and the person is honest about the previous work, then there is no way it can be approved.
Please note the foregoing assumes your friend is applying for an employment basedNONIMMIGRANT status such as H-1B or L-1. If your friend is applying for permanent residence based on a job offer, and he has worked without authorization over 180 days (either before or after filing the adjustment of status application), then he is ineligible for adjustment of status. He could, however, obtain an immigrant visa at a U.S. Consulate abroad instead of adjusting status. But of course, if your friend committed any fraud on previous visa applications, then the immigrant visa or adjustment could be denied on that ground and, if your friend is outside the US applying for the visa at a consulate, he would not be readmitted to the US until he got a waiver for the fraud.
