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Employment Residency FAQs

1. Can I obtain my residency through employment, if my boss wants to sponsor me?

To be eligible for an Employment Based Residency, you (the beneficiary) must meet all of the criteria in one of the three following categories:

Category I:

  • Must be living in the U.S. on or before December 21, 2000 (According to the former INA §245(i) law. Currently there are more than one proposed amendment to this statute which impose different statutory date limitations for filing. Therefore it is advisable to initiate this procedure as soon as possible if the requirements are fulfilled).
  • Must have never left the U.S. without permission of The U.S. Immigration Service.
  • Must have an offer of employment from a U.S. employer, who has agreed to sponsor the beneficiary for the residency.
  • Must receive a salary equal to or above the prevailing wage offered for such a position in the State in which the job will be performed.

Category II:

  • Must be lawfully present in the U.S. on a current nonimmigrant visa.
  • Must not have violated conditions of the nonimmigrant visa.

Category III:

  • Must be residing outside the U.S.
  • Must not have been previously deported or removed from the U.S.
  • Must not be subject to an order of removal, exclusion, or deportation.

2. How can I obtain a U.S. social security number?

In order to obtain a social security number, you must file a application form SS-5 with the Social Security Administration. The Social Security office will ask for identification and immigration authorization (evidence of a visa which allows you to obtain a social security number, a work authorization card, or a green card).

3. What is an Individual Tax ID Number (ITIN), what are its benefits, and how do I get one?

An Individual Tax ID Number is a number issued by the Internal Revenue Service (IRS) to record any taxes which a person who does not have a social security number owes. The benefit of using an ITIN number is that it provides an individual with a way to declare and pay taxes, even if the income earned was reported to an invalid social security number. This may serve as evidence that a person has been in the U.S. for a period of time to demonstrate eligibility for an immigration benefit such as cancellation of removal. It also can be used to demonstrate work experience to establish eligibility for a green card based on employment, as well as to provide evidence of an employer’s ability to pay when sponsoring an employee for a green card.

To obtain a tax ID number you must file the form W-7 with the IRS with evidence of identity, like a copy of your passport. You will receive the number in the mail with approximately 1 to 2 months.

4. Can my employer use my Tax ID number to pay my wages?

No, because he/she is unable to make the mandatory social security payments with this number. The only way your employer can pay you using the ITIN number is if you are hired as an independent contractor, not as an employee. Even if your employer does not pay you using the ITIN number, you can still file taxes using the ITIN number.

5. How do I renew my work authorization card? How many months before it expires should I renew it?

To renew your work authorization card, you must file an I-765 application with the Immigration Service, together with the appropriate filing fees (these vary). You should apply for renewal 6 months before your work authorization card expires.

6. If I have an employment residency application pending, can I change employer and continue with my pending application, if the new employer is willing to sponsor me?

This is only possible in some very specific situations. For example:

  1. If your I-140 has been approved for at least 6 months, you may change employer as long as the new employer and the new position are similar to the ones in the original petition, and the new employer is in the same geographic region as the original employer.
  2. If the original employer has changed corporate identity or merged with a new company and the new employment is with the new company.

In general, however, it is not advisable to change employers while your residency application is pending.

7. How can I declare taxes if I am getting paid in cash? (See answer to question 3).

You can still prepare a tax return declaring the total amount that you have earned during the tax year, without submitting a W-2 from your employer and using a Tax ID number (ITIN) instead of a social security number (if you do not have a valid social security number, see answer to question 3 on how to obtain an ITIN number). You will be responsible for paying all taxes owed, as you have not paid them through a payroll system, and probably no taxes have been withheld or deducted.

8. For an employment-based residency petition, what is the priority date that must be current for me to adjust status? Is it the one for my labor certification, or is it the one for the Form I-140?

Generally, it is the priority date of the labor certification. However, some visa categories do not require the filing of a labor certification. For example, visa category E-B1 for a multi-national manager does not require the filing of a labor certification application. In this case, the priority date would be the one in which the initial visa petition was filed.

9. What is labor certification?

Labor certification is the process by which the Department of Labor (DOL) verifies that there is no U.S. worker willing and able to accept a position of employment that is being offered to an alien/foreign worker. If there’s no U.S. worker willing and able to take the open position, the Department of Labor will “certify” the position and this will allow the USCIS to accept an immigrant visa petition from an employer for a prospective or current employee.

10. What is a prevailing wage?

The prevailing wage is the wage or salary that the State Department of Employment estimates is the median or most common wage, paid by employers within that state for a specific position, based upon the duties of the position and the qualifications of the applicant.

11. How do I determine what employment-based residency visa category I qualify for?

An individual qualifies for a particular category of employment visa base don several characteristics including the offered position, the education and training requirements, the applicant qualifications and the specific needs of U.S. employers These categories, according to these characteristics can be found in the Visa Bulletin published by the State Department:

12. How can US residency be lost?

There are many reasons why a person can lose his/her legal permanent residency in the U.S. Common reasons include: remaining outside the US for extended periods of time (more than 180 days), being convicted of a crime; providing false, improper or erroneous information on prior immigration applications, failure to apply for removal of conditions on a residency in a timely manner (for conditional residents), failure to comply with the requirements of conditional status (for conditional residents), and violations of certain immigration laws or regulations.

IMPORTANT NOTE ABOUT THIS DOCUMENT

The information contained in this document is general in nature and subject to change at any point in time. As such, it may not necessarily apply to all situations. Therefore, under no circumstance it should be construed as legal advice. Please ensure that you consult with an attorney regarding your specific situation before starting a legal process.

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