If I am undocumented, can I obtain employment-based residency?

In this week's Consulta Migratoria® column I answer the question of a reader who wishes to obtain permanent residency for work.

Each case is different and the answers vary depending on each person's immigration history.

Here I provide general answers to your questions. Please consult with an immigration attorney to receive personalized legal advice before starting any procedure.

This is the column:

I am from Honduras and arrived in the United States on a tourist visa in September 2015. My tourist visa has expired. I am working and paying taxes. My employer values my university education and excellent technical skills and wants to help me legalize in the country.

Is there a way to know if I can qualify for employment-based permanent residency before I hire an immigration attorney? --Javier P.

Javier, the first difficulty I see with your case is that since you remained in the U.S. without authorization since your visa expired in 2015, you have accumulated more than a year of undocumented time. Generally, having lived illegally for more than 180 days in the country prevents you from obtaining permanent residence in the U.S. through work, unless you are covered by 245(i).

If you have to travel abroad to claim your permanent residency, you would be subject to the penalty law, which does not allow you to return to the U.S. for 10 years, unless you can obtain a provisional unlawful presence waiver before traveling abroad. But to get one, you have to show extreme hardship to a U.S. citizen or permanent resident parent or spouse.

I understand that you want to know if you qualify for employment-based permanent residency, but since you have been living in the country illegally, you should consult with a licensed and experienced attorney in order to determine if you are eligible for that or any other benefit. During that consultation, the attorney will ask you a series of questions and analyze your situation and whether your employer may ask you. A consultation is not a hiring, but it is an evaluation that can guide you through your options.

For example, the attorney will analyze whether your employer meets all the rules for hiring foreign nationals, based on wages and benefits, your financial information, the number of employees in the company, and the kind of work he wants you to perform in the United States. In addition, he or she will check to see if you meet all the requirements and qualify for a labor petition.

Because of your current immigration status, you should proceed with great caution. Consult with an immigration attorney to determine your immigration options before you begin any proceedings.