Immigration: Riding the Elephant of Employer-Sponsorship

One way to become legal in the US is through an Employer-Sponsor case.  Many clients ask, “How can my employer sponsor me if I am undocumented?”

The Employer-Sponsor case envisions a process in which an employer wants to hire a person for a job in the future, when the person becomes legal.  This means that the immigrant does not need to be working for the employer-sponsor during the process, and would take the job after the immigrant either obtains an employment card or becomes legal.  This also means that an employer can sponsor a person who is not even in the US.  (That is the way that the process was designed:  that employers would sponsor a person for a future position, while that person is waiting outside the US)

In reality, most undocumented persons are working for their employer-sponsor, without work authorization.  Otherwise, why would the employer want to
sponsor the person?  Most undocumented persons are working for their employer, who wants to sponsor a good employee to become legal in the US.  It doesn’t
matter if the immigrant is working for the sponsor, or is waiting outside the
US.

Anyone can be an employer-sponsor, even if the immigrant is not currently employed by the employer-sponsor, and even if the immigrant is not even in the US.  

The first step is to obtain a prevailing wage from the US Department of Labor (USDOL), for the position being offered.  An employer-sponsor is not allowed to offer a job as a landscaper at a wage of $3.00/hour, for instance.  The US DOL
knows the wages for all jobs in the US.  The USDOL looks at the type of job involved, the location of the job, how much experience/education the employer requires, and provides a Prevailing Wage Determination.  The employer-sponsor
must offer the job at the prevailing wage, or higher.  The sponsor is not required to be paying the prevailing wage during the process if the immigrant is not even working legally.  The sponsor must offer the prevailing wage for the future position, when the immigrant becomes legal.

Next, the employer must advertise the position in a newspaper and on the internet, and try to find a US citizen to do the job, before the job can be offered to the immigrant.   (If the job being offered is for a high-level position which requires a college education, the employer may also need to advertise on college campuses, in trade journals and through employment agencies). The USDOL wants to make sure that there is NO US citizen who is qualified, willing and able to take the position being offered to the immigrant, before the job can be certified for the immigrant.  This is called the Recruitment Phase.