You probably won’t like what you hear about employee visas, sponsorships and other immigration status questions.
By Erich Straub, attorney
Despite the bleak legal landscape, I regularly get immigration questions from dairy producers, and they are strikingly similar.
As an immigration attorney, advising dairy producers can be a very frustrating experience. Don’t get me wrong: The clients are wonderful, but the law provides very few options. In spite of the bleak legal landscape, I regularly get immigration questions from dairy producers, and they are strikingly similar.
A typical inquiry goes something like this: “Hi, my name is Joe Producer, and I have an employee who has worked for me for many years. He is a fantastic worker, and he has become almost like family. He is from Mexico. He gave me a Social Security card and state identification, and I completed the I-9 like I do for every employee. I have never asked him questions about his immigration status, but I am concerned. If he did come illegally, is there any way I can sponsor him and get him a visa?”
Before giving my typical response to this question, I need to give some ground rules. First, every case is different. You should not apply the general advice in this column to your situation without consulting with an attorney who can consider your unique facts and circumstances. Second, questioning an employee about immigration status can subject you to civil and criminal liability and should never be done without legal advice. Now let’s get to my typical answer.
Can I sponsor my employee and get him a visa? The answer is almost always no. In order to get a employment visa in the U.S., a person has to be “admissible.” There are many rules under immigration law that make a person “inadmissible,” such as having a significant criminal record or a communicable disease. Generally, anyone who has worked in the U.S. without authorization is inadmissible for purposes of obtaining an employment visa. In other words, if an employee is undocumented, he will probably be unable to obtain a visa because he has already worked without authorization.
If I cannot sponsor my employee, is there another way for him to get a visa? In most cases, there probably is no other way to get a visa. If the employee has a relative who is either a U.S. citizen or lawful permanent resident, the relative may be able to petition for the employee. For example, a U.S. citizen can apply for her spouse, even if the spouse is undocumented. Rather than being an employment-based visa, it is considered family-based.
In most cases, the law is more generous with family-based petitions, but the grounds of inadmissibility still apply. However, unlike employment-based cases, a waiver of some grounds of inadmissibility may be granted upon a showing of extreme hardship to a spouse or parent who is a U.S. citizen or lawful permanent resident. The law is very complicated, so an undocumented person who has a U.S. citizen or lawful permanent resident relative would be wise to have their case evaluated by an immigration attorney.
Can I pay for my employee to have a consultation with you? You can, but in my opinion, it is not advisable. As an employer, you may have civil and criminal liability for knowingly employing an undocumented worker. An attorney has an ethical duty of loyalty and confidentiality to a client, and in this circumstance there is a potential, if not actual, conflict of interest. It becomes even more problematic where an employer makes the referral to an attorney who has represented or consulted the business. If the attorney becomes aware that the employee is undocumented, how can the attorney ethically serve both the business and the employee? The attorney has a duty to keep the employee’s immigration status confidential, but also to advise the business of potential liability. This is a classic conflict of interest and should be avoided.
This does not mean that the caring employer cannot refer an employee to an immigration attorney. Even a lawful permanent resident may need immigration advice, so the mere act of referring is not necessarily evidence of knowingly employing an undocumented worker. Just remember: Limit your involvement.
Erich C. Straub is an immigration lawyer who practices in Wisconsin and is listed in The Best Lawyers in America, SuperLawyers, and U.S. News and World Report’s Best Law Firms. Mr. Straub has spoken to audiences throughout the U.S. on immigration, and frequently advises Wisconsin Dairy Farmers on the topic. He has traveled Washington, D.C., to meet with elected officials regarding immigration reform. In 2008, the Milwaukee Business Journal described him as a “national leader on the federal immigration issue.” Contact him at (414) 224-8472 or firstname.lastname@example.org.