Labor Certification—Just Because You Can, Doesn’t Always Mean You Should
Question: Hello Attorney Byrd. Thank you for your weekly column, and your advice to our community. I want to know whether I should file for a labor certification. My aunt is willing to sponsor me as a caregiver in her care home. I last came to the U.S. in 2006 as a visitor, and have been out of status since 2007. My aunt consulted with a known law firm, and they want to charge us about $15,000 for the total process. I thought I read something in your column last year about being careful of the labor certification process. Should I file? Thank you for your help Attorney. Guido.
Answer: Thank you for your question Guido. A labor certification is a prerequisite to receiving a green card through employment. It does not give a person a legal right to work, or a legal immigration status. An immigrant petition for a worker is also a prerequisite for a green card through employment, and it also does not give a legal right to work or legal status. After these two are approved, then a person may be able to file for a green card.
Whether that person can file for a green card in the U.S. generally depends on whether that person has a legal immigration status at the time of filing. If that person is not in status at the time of filing, then the green card application would be denied. The only time that a person should file for a green card through employment when that person is in the U.S. with no status is when that person is covered under 245(i). This means that that person is the direct or indirect beneficiary of an I-130, I-140 or labor certification filed before April 30, 2001. If a person is not 245(i) qualified, then that person can not receive a green card in the U.S.
To answer your question Guido, if you last arrived as a visitor to the U.S. in 2006, that status ended in 2007, and you do not qualify under 245(i), then you should not apply for a labor certification, petition or green card. As well, if you are sponsored as a care giver, you may not have a labor certification approved as the employer should stop the process when they find an able, willing and qualified U.S. citizen or permanent resident worker who can do the job. Even if you did have an approved labor certification, and have 245(i) eligibility, it would be many years before your priority date would be current and you could actually file for a green card.
There are many unethical attorneys out there, who may state that they can file a labor certification for you, and some could even be approved. What they don’t tell you, unethically so, is that the approved labor certification and petition will NEVER help you obtain a green card if you have no 245(i) eligibility. Moreover, Guido, $15,000 for a labor certification and petition is very over priced. I highly suggest that you speak to another competent and reputable immigration attorney who can advise you on your specific circumstances. Take care.
IMMIGRATION NEWS
Good News—Children of K-1 Fiancée Now Protected From Aging Out After They Enter the U.S.!
In its June decision in Matter of Le, the Board of Immigration Appeals resolved the issue of whether the child of a fiancée of a U.S. citizen (a K-2 visa holder), who legally entered the U.S. under the age of 21, is eligible for adjustment of status even after turning 21. The Board concluded that the age of the child is “fixed” at the time the child is admitted to the United States. Previously, the Department of Homeland Security denied many adjustment of status applications, or green card applications for children who entered as a K-2, arguing that the K-2 child was ineligible for a green card because they had turned 21 after entering the U.S, but before the green card application was decided. Now, as long as a K-2 child is under 21 and enters the U.S., they can still obtain a green card as a K-2 even if they later turn 21 before the green card application is decided.
Beware—If ICE Takes You Into Custody, They Don’t Have to Tell You Your Rights!
The Board of Immigration Appeals recently held that noncitizens arrested without a warrant need not be advised of their rights under immigration regulation 8 C.F.R. 287.3(c)—including their right to an attorney and notification that any statements made can be used against them—until after a Notice to Appear has been filed with an Immigration Court. A Notice to Appear is the document that formally places a person in deportation or removal proceedings. Be aware that if you are taken into ICE custody and questioned, what you say can be used against you later. Ask for immigration counsel before answering any questions.
Attorney Beverly Byrd has exclusively practiced U.S. immigration law at Byrd & Associates for over ten years, helping thousands in the Filipino community. She obtained a law degree and then graduated with a Master’s in International Law from the prestigious Georgetown University Law Center in Washington, D.C. Georgetown Alumni include Philippine President Gloria Arroyo and President Bill Clinton.
Attorney Byrd is also active in the immigrant community, and has served on the American Immigration Lawyer’s Association’s Extended Board for the past several years as a liaison to the DHS San Francisco Asylum Office, DHS Customs and Border Protection, DHS Immigration and Customs Enforcement, and currently as the Continuing Legal Education liaison.
Attorney Byrd currently offers for a limited time a $25 consultation on the phone or in the office. Please contact her to schedule a consultation via e-mail at info@byrdassociates.com, or call toll free 877-987-9600. You can also see her website at www.byrdassociates.com for more information and to read her immigration blog, see her LinkedIn profile and follow her on Twitter.
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