Employer-sponsored green cards are still available despite H2-B ban

RECENTLY, the USCIS “de-listed” (or banned) Filipinos from applying for the seasonal/temporary H-2B visa. (This visa allows U.S. employers to bring foreign nationals to the United States to fill temporary nonagricultural jobs, such as housekeepers at hotels during the busy summer season.)

However, this ban DOES NOT APPLY to Filipinos seeking green cards through the labor certification or PERM process. That avenue for green cards or legalization is still available to Filipinos, as long as it is a legitimate job opportunity and you follow the rules and abide by the law.

The USCIS and U.S. Embassy concluded that Filipinos were abusing and/or being abused under the H-2B program:

• The Philippines has a high H-2B overstay rate, where nearly 40% of H-2B visa holders from the Philippines overstayed their visa and went TNT.

• Nearly 40% of the worldwide visas for family members of victims of trafficking (T-visas) were from Filipinos who came to the U.S. as H-2B visa holders and then claimed they were victims of trafficking.  In other words, DHS and DOS are now concerned about the high volume of trafficking victims from the Philippines who were originally issued H-2B visas and then became victims of trafficking. So, it appears it is not safe for Filipinos to apply for H-2B visas, as so many claim they were abused.

• “The Philippines’ continued inclusion creates the potential for abuse, fraud, and other harm to the integrity of the H-2A or H-2B visa programs.”

It also may be that many Filipinos were taking advantage of these programs by entering the U.S. on an H-2B visa but violating the visas by overstaying, and then in an attempt to remain in the U.S., made up stories about being abused or trafficked, so they can remain in America and bring their family from the Philippines to join them. 

However, even though Filipinos are banned from applying for an H-2B visa (except on a case by case exception), they can still apply for green cards under labor certification or PERM.  In fact, I have had several Filipinos consult with me, who were eligible to be petitioned by an employer, but mistakenly thought they were now banned from doing so.  That is not true.  Filipinos can still be petitioned for green cards through an employer.  The basic requirements are:

• A financially stable employer in the U.S. with a real job position, where the alien will work once they obtain their green card.  It need not be a Fortune 500 company.  It can even be a six-bed board and care facility, sole proprietorship, etc.  Typically, the net income on the employer’s tax return should equal the alien’s salary in order to demonstrate an employer’s “ability to pay” the wage.

• An alien who is qualified for the particular job position either through education or experience.  It need not be a college-level job.  In fact, caregivers are also eligible for green cards through employer sponsorship, and right now it takes about the same amount of time as professional or skilled workers (approximately 2-3 years.).

• The employer must first make a good-faith effort to locate qualified U.S. workers for the job. If there is no qualified U.S. worker ready, willing, and able to perform the job duties, the job can be “certified” for the alien.

• Even if a person is out of status, they may still be eligible to get a green card if they were grandfathered under section 245(i) or qualify for a provisional waiver.

Therefore, if you believe you are eligible, or know someone (such as a relative in the Philippines) who may be eligible, and there is an employer who willing to sponsor the alien, you should consult with an attorney, who can evaluate the case and assist in processing it.  But don’t miss out on a green card through an employer based on the H-2B ban, as it does not apply to labor certification green cards.

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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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