Can my boss sponsor me? Can I sponsor my friend, who is a great person? These questions and others like them are among the most commonly asked at our immigration law office. Unfortunately, most of the time the answer is “No.” This is frustrating to many people and may not seem logical. Shouldn't a US Citizen be able to help a good person who happens to be a foreign national to immigration to the United States? That answer has been answered by Congress in the Immigration and Nationality Act (“INA”) of 1952, and by many subsequent Acts modifying the INA. That is not the way Congress provided for immigration to the United States through the INA and subsequent legislation. Before my staff schedules someone with these questions to meet with me for a consultation, I point them to this article and I ask them to read it before scheduling. If they want to explore a specific situation, then I am happy to meet with them. However the majority of the time there is not going to be a pathway to work authorization for most individuals.
A quick (and disappointing) answer
A quick answer to the questions above can be summarized as a simple “no,” in many if not most circumstances. Generally, if someone is currently not in valid immigration status and is currently inside the United States, he will not be eligible to get a work permit. If someone is currently violating immigration laws, such as working without authorization, he won't be able to obtain a work permit. If an employee is the best employee at work, and can't be replaced, and is a fantastic person, but is working illegally then most options to obtain work authorization are not available. Don't get me wrong - I'm not trying to dissuade anyone from talking with a lawyer about their particular situation. In fact, I often find a pathway to immigration status when clients thought they had none. However, when people see me with the above questions in mind, most of them are not going to receive the positive answer they are looking for.
A more detailed explanation below will help those who want to continue reading to understand why the answer is how it is, and in what circumstances someone may in fact be able to obtain immigration status.
Work authorization is required for all doing work in the United States. If you are a US Citizen, you are automatically authorized to work. If you are a Lawful Permanent Resident, you are automatically authorized to work. If you are not, and you are a foreign national, you are not allowed to accept work in the U.S. unless you have work authorization.
Generally a work permit will be issued to those who are authorized to work in the United States. Some foreign students and others who are authorized to work on a limited basis may not be issued an actual work permit card, which is known as an Employment Authorization Document (EAD card). There are many categories of individuals who can qualify for an EAD and thus have permission to accept employment in the United States. A few examples are asylees, refugees, applicants for adjustment of status, investors, spouse of investors, deferred action, and DACA recipients. You can find a more complete list on the USCIS website on the instructions for Form-I-765.
Immigrants can work in the U.S.
Immigrants and some applying for immigrant status qualify to work. Lawful Permanent Residents (LPR's) are immigrants and don't need a separate work permit.
Who can immigrate?
Congress set up a system that has two basic pathways to immigration. Family based, and Employment based. There are other methods such as the Diversity Visa lottery (which has been a controversial visa category that some have wanted to abolish) but Family and Employment are the two basic ways to immigrate.
Family Based Immigration
A US Citizen can petition for his parents, his spouse, and his unmarried children who are under 21. The most common immediate relative categories are:
- IR-1: Spouse of a U.S. Citizen
- IR-2: Unmarried Child Under 21 Years of Age of a U.S. Citizen
- IR-3: Orphan adopted abroad by a U.S. Citizen
- IR-4: Orphan to be adopted in the U.S. by a U.S. citizen
- IR-5: Parent of a U.S. Citizen who is at least 21 years old
There are an unlimited number of visas for these categories so the process is relatively quick. If the intending immigrant is already in the United States, even if he has a US Citizen who is an immediate relative, he must have proof of a lawful entry before he can adjust his status. Of course since this is immigration law, there is an exception for those who are 245(i) protected, which is beyond the scope of this article). This is the reason why an employee who entered the country illegally cannot just marry a US Citizen and expect to become a Lawful Permanent Resident. He must have a lawful entry (or be 245(i) protected). There is a way for a spouse of a US Citizen to become a Lawful Permanent Resident if he qualifies, through consular processing. However a detailed consultation with an attorney should be done to explore eligibility. The process takes a considerable amount of time as well.
If a person does not have an immediate relative who is a US Citizen, his options to obtain work authorization are more limited.
There are additional family categories that US Citizens and LPR's can petition to become immigrants in the U.S. They are listed below. However, there are only a certain number of visas allowed for these relatives every year, so depending on the category and country, there may be a significant wait until a visa becomes available.
- Family First Preference (F1): Unmarried sons and daughters of U.S. citizens, and their minor children, if any. (23,400)
- Family Second Preference (F2): Spouses, minor children, and unmarried sons and daughters (age 21 and over) of LPRs. At least seventy-seven percent of all visas available for this category will go to the spouses and children; the remainder is allocated to unmarried sons and daughters. (114,200)
- Family Third Preference (F3): Married sons and daughters of U.S. citizens, and their spouses and minor children. (23,400)
- Family Fourth Preference (F4): Brothers and sisters of U.S. citizens, and their spouses and minor children, provided the U.S. citizens are at least 21 years of age. (65,000)
If a person is here in the United States, and if he is a preference-level relative, then he will have a longer time to wait until his visa and his work permit can become available. There are two comments that bear mentioning here. First, under the Obama administration, some of the applicants in preference categories qualify for work authorization. Meet with an attorney to explore this option. It is not known if this opportunity will remain viable or will be cancelled by the current Trump administration. Second, unauthorized presence in the U.S. and unauthorized work are not waived for those preference immigrants, like they are waived for immediate relatives as discussed in the above section. This means that even though there may be a pathway to immigration, a waiver may be required or may not even be available so the intending immigrant may not be able to complete the process.
A reason why many people can't qualify to get legal or get a work permit is that they don't have a relative who can apply for them, or they don't qualify for a visa even with a relative.
Employment Based Immigration
Employers can sponsor immigrants. However, this becomes problematic in several ways for many employers who want to sponsor a specific undocumented employee. These problems are unfortunate, as employers who need good workers often have no pathway to help a good worker get legalized. For employment based visas, an undocumented person cannot change into one of the below categories from within the United States. This is the reason why a good employee who may not be documented cannot immigrate through an employment based route, and thus cannot get work authorization.
Categories for Employment based immigration
- E1 Priority Workers. These are some of the top talent in the field. Persons with extraordinary ability, outstanding professors and researchers, and multinational managers or executives qualify.
- E2 Professionals holding advanced degrees and persons of exceptional ability.
- E3 Skilled workers, professionals, and unskilled workers.
There are three subgroups within this category:
- Skilled workers are persons whose jobs require a minimum of 2 years training or work experience that are not temporary or seasonal.
- Professionals are members of the professions whose jobs require at least a baccalaureate degree from a U.S. university or college or its foreign equivalent degree.
- Unskilled workers (Other workers) are persons capable of filling positions that require less than two years training or experience that are not temporary or seasonal.
An employer may eye subgroup 3 - unskilled workers - and think that this is the answer. They can simply go through the process of applying for their worker, and he fits nicely in that description. However the “other worker” category is often delayed (see the current visa bulletin) and it will be difficult to obtain the required waiver necessary. The process for petitioning for a worker is lengthy and costly, and keeping an undocumented worker employed during this process presents additional problems. The employer may be fined or otherwise punished for hiring unauthorized employees. Thus as a practical matter an undocumented worker in the U.S. cannot normally use the employment based immigration process to obtain work authorization.
Non-immigrants can work in the U.S.
Besides immigrant visas which give immigrants authorization to work, there are non-immigrant visas that provide for work authorization.
Temporary Work Visas
H visas are for professionals who have a degree. While there are limited visas issued in this category, those with education beyond a bachelor's degree have additional visas available. This visa is also very special because it allows for dual intent which is a very important attribute. A person holding an H1-B, for example, can simultaneously work using the visa, while applying for a permanent resident visa. Non-immigrant visas do not generally allow for dual intent.
L Visa - Intracompany transfer. This visa is for a worker who is coming to the U.S. to work for a company who is affiliated with his foreign employer. Note that the employee must have at least a one-year work history with the company outside the U.S.
O Visa - Extraordinary ability or achievement. This visa is for extraordinary individuals in the sciences, arts, education, business, athletics fields, or those who are exceptional in the motion picture or television fields.
P Visa - Athletes, artists and entertainers. These visas can apply to individuals or a group.
Q Visas - This visa is for participants in an International Cultural Exchange Program.
Other Work Visas
J Visa - Exchange Visitors. Summer work programs for college age students, au pair programs, and other temporary workers.
I Visa - Media visa for the foreign media, press, and radio.
E-1/E-2 Treaty Trader visa. Check to see if your country is a signatory to a treaty with the U.S. If so, an investor can invest in a US company and will qualify for a visa to allow him or her to run the business.
There are a variety of visas for different purposes. In the context of this article, there are not many, if any options for an employer who has an undocumented employee working for him or her to sponsor them to become legal. Working without authorization and unlawful presence in the U.S. are barriers that prevent eligibility from a visa. However, sometimes a particular employee may have a situation that meets an exception. I have seen some clients in this situation discover they are 245(i) protected which waives ineligibility grounds. Others may have an option to become legal through a US Citizen spouse or parent. A good attorney can do the difficult task of assessing a particular client's situation, and presenting any options to obtain work authorization or otherwise become legal.
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