Find a US employer for your spouse if you can’t get legal status

Dear Attorney Gurfinkel:

I came to the US many years ago, and am out of status. I have now been away from my spouse and children for many years, and have been desperately looking for ways I can bring them to the US because we miss each other so much. I have an employer willing to petition me, but I’ve been told my case is hopeless because I am out of status.

Do you think there is any hope for me to bring my spouse and children to the US?

Very truly yours,

AH

Dear AH:

Ordinarily, in order for a person to adjust status (be interviewed for a green card in the US), the person must be in status or be “grandfathered” under section 245(i), which is a law that allowed TNTs to adjust status in the US if they had been petitioned before April 30, 2001.

If a person is out of status and is not grandfathered under section 245(i), they ordinarily cannot adjust status in the US, except through a bona fide (“love”) marriage to a US citizen.

I’ve had many people consult with me who are in a similar situation as you: desperately trying to bring their family to the US, but they are out of status.  In such a situation, another possible option is to consider finding a US employer who could petition your spouse from the Philippines. Remember, your problem is you are out of status. Your spouse back home is not. Your spouse would not need to have the benefit of section 245(i).

You may have been so distracted into thinking that the only way your family can come to the US is through YOU. That is not always the case. You can help them immigrate to the US on their own. While this may not necessarily help you get legalized, at least you could be united with your family in the US and they could have green cards.  The basic requirements are:

1. A financially stable employer, with a real job position.

2. The person being petitioned is qualified for that job through education or experience.

3. It does not need to be a college-level job or a Fortune 500 company.  Even caregivers are eligible for green cards, and small employers are qualified to petition people if the employer is earning enough to afford the alien’s salary.

4. Right now, it is taking about 2 1/2 or three years to process an employment-based green card. But isn’t that a lot better than “never,” if you cannot legalize your status?

If you are out of status with a spouse and children, you may want to consult with an immigration attorney who can evaluate your situation along with your spouse, to see if there could be hope. Also you might be eligible for provisional waiver if you have parents who are citizens or immigrants and you have a way to get a green card now.

Michael J. Gurfinkel has been an attorney for over 35 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories,” endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.

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