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Be careful what you ask for

The question begins as follows: My employer knows that I am illegally in the U.S. and really wants to help me. He asked me to ask you what he needs to do in…

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The question begins as follows: My employer knows that I am illegally in the U.S. and really wants to help me. He asked me to ask you what he needs to do in order to sponsor me for a green card.

Generally, when we’ve discussed this issue before, the answer has been : He can do nothing to help because  unless the immigration law changes for the better, if you are illegally present in the U.S. you cannot currently benefit from a PERM application—an application for alien employment certification filed by your employer with the U.S.. Department of Labor on your behalf. We’ve discussed and discussed, on so many other occasions, that someone who is illegally present and is not “grandfathered in” under section 245i of the Immigration Act because a bona fide immigration application through either a qualifying family member or an employer was filed on or before April 30, 2001, has nothing to gain by asking an employer to sponsor him. We have not, however, discussed in great detail what happens when an employee is grandfathered in under section 245i of the law and meets all other requirements of the immigration law to adjust his status and then turns to an employer, asking him for sponsorship, only to be told that an employer cannot or will not serve as the sponsor.

Many people ask: How can my employer do this to me? He knows that I am the best worker. He knows that I have three children and a wife in this country and that I worry about us being deported every day and every night, especially in light of all the recent raids in the Delaware Valley area. How can this employer be so heartless? Is he just trying to take advantage of me? Is he afraid that if he sponsors me and I get my green card, I’ll just up and leave him? Perhaps. Most probably, however, the employer is unwilling to act as a sponsor because he knows that if he does he will be subject not only to civil fines for continuing to knowingly hire an illegal alien but also subject to imprisonment.

How is that possible? Remember that I-9 form that you filled out when you first started your job? That was the form where you told your employer that you were a lawful permanent resident of the U.S. and provided a copy of your false “green card” and ‘‘social security card”. By completing this I-9 Form and attesting to your legal status in the U.S. unless your employer received a “no match” letter from the Social Security office or learned somehow that your documents were not real and your immigration status nonexistent, he was essentially protected against any criminal charges. Now, however, when you come forward and ask for sponsorship, that employer has actual knowledge that you are in the U.S. illegally. Once he begins the PERM process with DOL, at any time someone from either DOL or USCIS, if they are paying attention, could use the information that you unwittingly given them in conjunction with the PERM application and later the I-140 petition to demonstrate that your employer knew, at the time of the filing of the PERM application, that all of the documents you provided to him were false and that you lacked legal immigration status. Such actual knowledge of your unlawful status is the basis for a criminal indictment against your well-meaning employer.

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What should your employer have done when you approached him seeking sponsorship? Fired you in order to protect him, leaving you without employment.

So, in this immigration environment, be careful what you ask for: a request for sponsorship could lead to a termination in employment.

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