In December, we spoke with Attorney Marcel Miclea, who is originally from Romania but now calls Michigan home. He has been with George P. Mann & Associates since 2010, handling a large variety of family & employment-based immigration and consular matters for the firm.
Marcel’s favorite cases involve helping clients who have been struggling for years to stay in this country legally. “These are good people who want to work and live here without the fear of being deported. When you listen to their stories, some very compelling, you can’t stay impassive,” he explained. Marcel pointed out that some lucky people, especially in employment-based cases, are granted permanent legal residency without realizing how much effort was put into the case, because their sponsors and lawyers do all the work. Others aren’t so fortunate and have to go through many laborious steps along the way. This is certainly the case for Marius, a citizen of Lithuania, who has tried for nearly twenty years to obtain a green card through employment offers.
Marius initially entered the U.S. on a tourist visa in 1996 with his wife and son; he came to our firm in the Spring of 2001 to pursue a green card via his employer. However, due to previous unlawful presence in the U.S., his only option was to have his employer submit a Permanent Labor Certification (LC) to the U.S. Department of Labor prior to April 30, 2001 and, once approved, file an I-140 immigrant petition with U.S. Citizenship and Immigration Services (USCIS). Our firm managed to file the LC on April 27th, three days before the cut off date imposed by the Legal Immigration Family Equity (LIFE) Act, which is known as 245(i) coverage.
In employment-based immigration, U.S. companies that wish to hire foreign skilled workers or professionals must first demonstrate to the U.S. government that they made efforts to fill the job with qualified U.S. citizens or legal residents; only if unsuccessful, can they then petition for a non-U.S. resident, who must be paid at least the prevailing wage for that job and in that geographical area.
A carpenter by trade, Marius was employed by a business in New Jersey back in 2001. Although our firm obtained the Permanent Labor Certification based on Marius’s job offer, USCIS determined that his employer did not have the financial ability to pay his salary and denied the I-140 immigrant petition.
Still eligible for adjustment because of our promptly-filed initial LC, in 2010 Marius elected to pursue a green card through a different employer and a different attorney. Unfortunately, his second attempt also failed during the Department of Labor’s audit; the employer was not able to properly document its efforts to recruit U.S. residents prior to petitioning for Marius. “This is one particularly difficult aspect during labor certification. Sometimes you do a perfect job helping the employer document how many people applied, how many were considered or rejected etc. only to realize that an innocent typo in the labor certification form was the wrecking ball that destroyed everything and you have to start all over,” Marcel said. As such, Marius was left with two separate denials, no closer to resolving his immigration case after nine years of trying.
In 2013, Marius returned to our firm to take a crack at green card one more time. We filed his Permanent Labor Certification, and as is common, received an audit in July 2014. We submitted the requested evidence and although it took nearly a year to process, Marius finally received his labor certification approval. He had cleared the first hurdle.
The next step was to file an I-140 immigrant petition and we decided to do it concurrently with the green card application. USCIS issued a Request for Evidence (RFE) asking for proof that Marius’s sponsoring company maintained its ability to pay his salary every year since the LC was filed (December 2013). Since Marius wasn’t an employee of the company between 2013-2015, we had to show that the company’s annual profit in 2013, 2014 and 2015 would have completely covered his annual salary for each one of those years. The employer had reported sufficient profit in 2014 and 2015, but due to a significant investment made in its showroom in 2013, the profit for that year was lower than Marius’s annual salary. Marcel responded to the RFE with ample evidence of investments made in the summer of 2013, including a letter from the employer’s accountant explaining that absent these expenses, the employer would have ended the year with profit in excess of Marius’s salary. Shortly after our response, in October 2015, we finally received the good news — Marius’s green card had arrived in the mail.
According to Marcel, Marius’s case illustrates the need for improving the labor certification process in the U.S.: “The system was created mainly to protect U.S. workers against inexpensive labor from overseas which is absolutely normal. However, the result translates into a significant amount of time, money, paperwork, and uncertainty that clearly don’t benefit U.S. companies and/or the American people. To the contrary, lawyers and advertising companies benefit more. In the end, the employers will find ways to work with this complicated system and hire whom they want, so why not make this process more candid?”
In Marcel’s opinion, the goal to protect U.S. workers is not working but he shared some ideas on how to improve the system. For instance, instead of demanding that a professional job be advertised in five different places, the government could create one central database, where all U.S. sponsors should advertise the job for 3-4 weeks. “This would avoid countless denials based on choosing an improper venue for the job ad,” Marcel said.