In our AskVisalaw.com section of the SIB, attorney Ari Sauer answers immigration law questions sent in by our readers. If you enjoy reading this section, we encourage you to visit Ari’s blog, The Immigration Answer Man, where he provides more answers to your immigration questions. You can also follow The Immigration Answer Man on Facebook and Twitter.
If you have a question on immigration matters, write [email protected]. We can’t answer every question, but if you ask a short question that can be answered concisely, we’ll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.
1) QUESTION: I have been sponsoring an employee for an H1b for 3 years. He has a bachelor’s degree and he had 2 years of experience before he came to work for me. Since he now had a bachelor’s degree and 5 years experience, can I sponsor him for an EB2 petition? I have been told that his experience working for me does not count towards the 5 years, but intuitively it doesn’t make sense. That would mean that someone else can sponsor him for an EB2 but I can’t. Can you please explain this to me?
ANSWER: It is not only an issue of him using his experience. It is a question of what is the actual minimum requirement to perform in the position. In order to sponsor him under the EB2 category, the position has to have a minimum requirement of a master’s degree or the equivalent (generally a bachelor’s and 5 year of post degree experience) to be able to perform the duties of the position. Since your employee has been working in the position for the past 3 years without a master’s degree or the equivalent, then clearly the job can be done without a master’s degree or the equivalent.
Under certain circumstances you may be able to sponsor the employer for a different position if a master’s degree is required to perform the duties of the new position. And yes, other employees may be able to sponsor this foreign national for an EB2 for this position, if they can show that a master’s degree is a requirement to perform the duties of the position at their company.
In the meantime, if you file the PERM application early enough, you should be able to continue extending his H-1B until he is eligible to apply for the green card under the EB3 category.
2) QUESTION: I am a U.S. citizen and my husband is in the U.S. illegally. I filed an I-130 and it was approved. It is my understanding the visa is available to him but my attorney advised me not to move forward with filing the Affidavit of Support or the DS-230 or go for the interview abroad. Why is this? The laws will not change for a longtime. Isn’t it better for my husband to go home and follow through with everything and appeal than to sit here in the U.S. and do nothing?
ANSWER: This is one of those tough questions that do not have a one-size-fits-all answer. I meet couples like this all the time, where the foreign national is married to a U.S. citizen, but because they entered the U.S. without inspection, and are not eligible to be grandfathered under the 245(i) “amnesty” or one of the other possible exceptions, they are not eligible to apply for a green card by filing for Adjustment of Status (Form I-485) in the U.S. Also, since the foreign national has been unlawfully present in the U.S. for more than 6 months, they would be subject to a 3 or 10 year bar of inadmissibility if they leave the U.S.
This is one of those situations where you absolutely need an experience immigration lawyer that you trust. This is because some couples are eligible to apply for a waiver of inadmissibility based upon extreme hardship to the foreign national’s U.S. citizen or Permanent Resident spouse or parent. But extreme hardship is more than just the usual hardship caused when a married couple is separated from each other. There has to be other factors there in order for an adjudicator to determine that there is extreme hardship. Examples of additional hardship that would be considered are health issues, financial considerations, loss of opportunity for education, personal considerations such as close relatives in the U.S. and age of the parties, and other factors such as cultural, religious and ethnic obstacles. These are just some examples and as there is no limit to the type of hardship that can be shown to explain how your personal circumstances may qualify as imposing extreme hardship on a qualifying U.S. citizen or permanent resident relative. The point is that each couple needs to have their particular situation assessed for the possibility of showing extreme hardship by a competent attorney they trust. So it may be that your attorney does not feel you currently have a strong enough case for extreme hardship required for the waiver.
Also, if the foreign national has entered the U.S. without inspection more than once, or has entered the U.S. without inspection after having accrued one year or more of unlawful presence, or has entered the U.S. without inspection after being removed by the U.S. government, then it may be that the foreign national is permanently barred from receiving a visa to reenter the U.S. In such a case the I-601 or I601A waiver may not be available as an option.
These are all factors that need to be discussed with your attorney. If you are not sure that your attorney is giving you the best advice, or you feel that you have a stronger case for hardship than your attorney says, then you always have the option to get a second opinion.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.