Sindell Law Offices E-Min Newsletter (Vol. 8) - English Article #35

    You are out of status. you have overstayed your visa. If you leave the country, your attorney told you that you cannot return for ten years. Is there nothing to do but wait?

Back in 2000, when we were in a similar situation, some people filed labor certifications anyway. When the 245i extension passed in 2000, and people could file labor certifications until April 2001 if they were out of status, created a huge backlog of labor certifications, which still has not been sorted through, almost four years later. Just imagine if you had filed in December of 2000, instead of April 2001, by now, your permanent residence would most likely have been granted.  Those who filed before the deadline were processed first, and those that filed at the last minute, are still waiting their turn in many of the large states. At that time, even if you had filed beforehand, since the law had not been passed, no one had any idea as to whether the law would pass and what the conditions for obtaining permanent residence down the line.


One School of Thought says that you file a labor certification application now, even though you may never get to use it, in the hope of the law changing allowing you to continue with the process. One thought is to file the labor certification, the first step in obtaining permanent residence, in the hope that 245i or a similar amnesty program will be introduced.  Since the reelection of President Bush, it is conceivable that there will be a form of an amnesty program or guest worker program introduced and passed by Congress. If this happens, and you have filed a labor certification, it is conceivable that you can use the labor certification in some way to gain status. Granted, it is a gamble to spend money and time to file something which may turn out to be a useless piece of paper in the end.


However, given the current political climate, it may be less of a gamble today than it was three months ago. Right now, there are many persons out of status cannot gain status unless by marriage to a US Citizen. The option is to wait, do nothing, and then maybe be too late, or take a chance and file a labor certification for the future. There are inherent risks involved in filing a labor certification for a person out of status in that you are alerting the service, and the labor department that you are out of status and probably working illegally. In most states, this fact goes ignored, but by filing a labor certification application, you are alerting the government to your presence and would be subjecting yourself to the possibility of deportation. Recently, USCIS has not gone after people in this category, but you never know, since it is certainly in the realm of possibility.


The applicant should balance the risk of being caught and the reward of being able to use a labor certification in obtaining permanent residence. The ultimate decision is in the applicant’s hand, but it is a viable option to consider applying for an employment based green card, even if there is no way to obtain it right away.