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Green card sponsorship in the 2009 economic climate

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Many discussions over the past year have centered on whether an employer could successfully “sponsor” an employee who is in the U.S. illegally for a green card.  Few of such discussions, however, have focused on those who are here legally in valid immigration status such as those with F-1 student visas, H-1B visas, J-1 visas or L-1s. In fact, it was always the understanding that these individuals could be sponsored with success, especially if they were professionals in areas such as IT, engineering and even in the social services. Indeed, in a good economy, individuals holding the above legal statuses were great candidates for green cards and an immigration attorney’s dream. Not so, however, in 2009. In this new era, cases which were previously readily approvable are now being carefully reviewed and ultimately denied. Why? 

Most employment cases requirement that an employer utilize the PERM system, a system in which the availability of qualified U.S. citizen and lawful permanent resident workers is tested by the placement of advertisements in local newspapers, on web sites and in other sources generally used to recruit qualified workers. In the good old days, few, if any qualified applicants responded to these advertisements and hence the Department of Labor, the agency charged with these applications, generally was able to approve a large portion of these applications and “certify” the same. Enter eight years of economic downturn and the recent six months of lay off after layoff and very few jobs are now capable of being certified by the Department of Labor. Indeed, the Department of Labor is now auditing at least one third of all PERM applications filed and heavily scrutinizing those applications filed by companies whose names appear in the news as having laid off U.S. workers. Moreover, companies who advertise pursuant to PERM are now being swamped by hundreds of applications, many of which are being submitted by qualified U.S. workers who are willing to fly in, at their own expense, for a job interview and if offered the job, to relocate, again at their own expense.

In this climate it is the duty of every responsible and ethical immigration lawyer to have a heart to heart discussion with the employer (who, by the way, is responsible for the payment of the PERM fees), to alert him to such changed circumstances and to advise both the employer and the employee of the wisdom of pursing a PERM application in this economic market.

Unfortunately, many legally present nonimmigrants who seek permanent resident status will and are being harmed by this economy (as are so many of our unemployed U.S. citizens and permanent residents). Certainly, our futures are invariably intertwined for once America recovers only then will those who wish to become lawful permanent residents succeed in an economy driven immigration system.

 

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