A PERM Labor Certification can be an excellent pathway to permanent residence for many foreign nationals. However, for individuals who entered the United States without inspection (“EWI”), pursuing a PERM case without first understanding the immigration consequences can lead to false hope, wasted money, and, in some situations, increased immigration risk.
At Revilla Law Firm P.A., we believe in candid and strategic immigration advice — especially when a case may not ultimately lead to lawful permanent residence.
The Problem: PERM Does Not “Fix” an Illegal Entry
A PERM Labor Certification is only the first step in an employment-based immigration process. Even if the PERM is approved, the foreign national must still qualify to obtain lawful permanent residence.
For individuals who entered the United States without inspection, this becomes the central problem.
In most employment-based cases, the applicant eventually must either:
Adjust status in the United States; or
Attend an immigrant visa interview at a U.S. consulate abroad.
A person who entered without inspection is generally not eligible to adjust status inside the United States unless they qualify under a limited exception, such as §245(i).
As a result, many individuals are ultimately required to leave the United States for consular processing.
The Unlawful Presence Bar
Leaving the United States after accruing unlawful presence can trigger severe immigration penalties.
In many cases:
More than 180 days of unlawful presence can trigger a 3-year bar; and
More than 1 year of unlawful presence can trigger a 10-year bar.
This means that a person who departs for a consular interview may become stuck outside the United States for years unless they qualify for an unlawful presence waiver.
The Critical Question: Do You Have a Qualifying Relative?
For most unlawful presence waivers, the applicant must show that a qualifying U.S. citizen or lawful permanent resident relative would suffer extreme hardship if the waiver is denied.
Importantly, not every family member qualifies.
Typically, the qualifying relative must be:
A U.S. citizen or lawful permanent resident spouse; or
A U.S. citizen or lawful permanent resident parent.
Children generally do not qualify for purposes of the unlawful presence waiver.
This is why many individuals who entered without inspection should not begin a PERM process unless a careful legal analysis confirms that a waiver strategy exists.
Why This Matters Before Spending Thousands of Dollars
A PERM case can take years and involve substantial expenses, including:
Recruitment costs;
Prevailing wage filings;
Attorney fees;
Employer compliance obligations; and
Government filing fees later in the process.
Unfortunately, some individuals complete the entire PERM and immigrant petition process only to discover at the final stage that they cannot actually obtain permanent residence because they lack a qualifying relative for a waiver.
Every Case Requires Strategic Screening
There are exceptions and alternative strategies that may apply in certain cases, including:
§245(i) eligibility;
Prior lawful entries;
Parole-based strategies;
Certain humanitarian remedies;
Consular processing risk assessments; or
Other waiver options.
For this reason, employment-based immigration cases involving unlawful entry should always be carefully screened before beginning the PERM process.
Schedule a Consultation
If you entered the United States without inspection and are considering a PERM Labor Certification, it is essential to evaluate the entire immigration strategy before starting the process.
At Revilla Law Firm P.A., we analyze both the employment-based process and the waiver issues from the beginning so clients can make informed decisions about their future.