Companies are facing uncertainty. In the Washington, DC area, numerous companies hired employees with Temporary Protected Status or TPS. These companies, typically in the construction or hospitality business, including restaurants and hotels, are at a loss of what to do if the government does not renew TPS. This blog will provide the HR Department with some insight as to what can be done. After all, we understand that a company builds a relationship with its employees and it is a tough decision to let go of a productive workforce.
Q. Can my company sponsor my employees with TPS and grant my employees the green card?
A. The answer to this question depends on the company’s finances, which probably have been affected during the COVID crisis, and if the employee has a path to residency. On the company’s side, the finances must be solid and the company must be able to prove that it can pay the employee the same wage a US worker would obtain for the same job.
If the company does not have an issue with its finances, then the issue is whether the employee has a path to the green card. Typically, there are four factual scenarios that the company, the employee, and the attorney must review.
First, did the employee arrive in the United States lawfully and maintained lawful status. If the answer is yes, then the company can petition for its worker and the worker will obtain the green card.
Second, if the employee arrived in the United States in unlawful status, the question that must be asked is if the employee accrued unlawful presence. That is, if the employee filed for TPS or DACA before his or her 18th birthday and six months, the employee should be ok and has a path to residency.
Third, it is important to know if the employee filed for benefits under section 245(i). That means if the employee was a beneficiary of a labor or family-based petition filed by April 30, 2001, the employee can obtain lawful permanent residency in the United States via a sponsorship from the company.
Fourth, assuming the first three scenarios do not apply, the question is whether the employee is eligible to obtain a provisional waiver of the unlawful presence. If the employee’s parents or spouse are green card holders or US citizens, then the employee can obtain a waiver of unlawful presence and the company and the employee have a path to the green card.