Can my employer sponsor me for a work visa if I entered illegally or overstayed my visa?

Welcome back to Immigration Lawyer Blog, where we discuss all things immigration. In this video, we cover a very important topic: can people who overstayed their visa or entered illegally, get a work visa or employee sponsorship?

Recently our office met with a client who was in this very predicament. He had the perfect job opportunity from his dream employer and was now interested in knowing how he could obtain a work visa with his employer’s sponsorship. The problem: he entered the country illegally and since entering had no lawful status in the United States.

Here is where we had to deliver the bad news.

The bottom line

A person who has entered illegally or overstayed the duration of their visa, is not eligible to adjust their status to permanent residence. During the employment sponsorship process, the visa applicant must provide information regarding their entry to the United States. Under current immigration law, a person who has entered without inspection cannot adjust their status in the United States, based on employment sponsorship except under one limited exception called 245(i).

What is 245(i)

245(i) is a provision in the law passed under the Legal Immigration Family Equity (LIFE) Act in the year 2000, enabling certain individuals who are unlawfully present in the United States to apply for adjustment of status, despite their unlawful entry.

To qualify for this provision, you must be the beneficiary of a labor certification application (Form ETA 750) or immigrant visa petition (Forms I-130, Petition for Alien Relative or I-140, Immigrant Petition for Alien Worker) filed on or before April 30, 2001. In most cases, you must pay an additional $1,000 fee and complete Supplement A to Form I-485, Application to Register Permanent Residence or Adjust Status, to apply under Section 245(i) provisions with your adjustment of status application (Form I-485).

Unfortunately, if you are not the beneficiary of an immigrant petition filed on or before April 30, 2001, you are out of luck.

Even in cases where the applicant marries a United States citizen, the applicant must qualify for and receive an approved waiver before applying for an immigrant visa at a US Consulate abroad.

What about overstays?

In cases where the applicant did not enter illegally, but instead overstayed their visa, the employer would still not be able to sponsor that individual because they are already out of status.

An applicant who has overstayed may only be eligible to adjust their status to permanent residence based on marriage to a US Citizen. In this case, the applicant’s marriage to a US Citizen forgives the overstay.

If you are an employer it is important for you to know that unfortunately under current immigration law you cannot sponsor an individual who has entered illegally or who has overstayed their visa.

For more information about 245(i) please click here.

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