Many American families and companies employ gardeners to perform yard work and maintenance. If your gardener is a foreign national, there's a chance -- although a small one -- that you may be able to sponsor the gardener for a U.S. green card.
However, the green card process becomes very difficult – or even impossible – if the gardener is in the U.S. illegally – that is, after an illegal entry or overstay beyond the permitted time on a visa or other immigration status.
How Unlawful U.S. Status Impacts Your Gardener's Chances of a Green Card
Foreign nationals who are in the U.S. illegally accumulate something called “unlawful presence.” A foreign national who accumulates too much unlawful presence (180 days or more) becomes “inadmissible.” He or she will thus, upon leaving the U.S. for the required green card interview at a U.S.consulate, be barred from reentering the U.S. for three or ten years. (See “Consequences of Unlawful Presence: The Three- and Ten-Year Time Bars” for details.)
A few exceptions do apply. No matter what, however, unlawful presence is a serious immigration issue and you should consult an immigration attorney to help determine whether you can sponsor an unlawfully present foreign national.
The attorney can also tell you whether your gardener has some other basis upon which to apply for U.S. residence, or at least a temporary right to remain in the United States. For example, your gardener may be eligible for asylum; for a green card based on a family relationship to a U.S. citizen or permanent resident; or for Temporary Protected Status (TPS) if his or her home country is in the midst of civil strife or recovery from a natural disaster.
Steps Involved in Helping a Gardener Get a Green Card
It could be that your gardener does have some temporary right to be in the U.S.; perhaps a student or other visa, or a work permit based on TPS, or what’s called “deferred action” status. In such a case, you could be of help – though the gardener’s legal status would either have to last several years, or the gardener would have to be willing to leave the U.S. for a stretch of time before returning, in order to successfully conclude the green card application process.
Here’s an overview of what you would be signing up for, procedurally. To sponsor a gardener for a green card, you would need to complete a process known as Labor Certification or PERM. As the first step toward PERM approval, you’d need to place job advertisements for the gardener position, and interview any applicants who responded to the ads. Next, you would have to be able to disqualify all the applicants (other than your chosen one) for job-related reasons and then confirm with the U.S. Department of Labor (DOL) that no U.S. applicants were available, qualified, and willing to do the job. (For pointers on interviewing PERM applicants, please see “Employers' Responsibilities When Reviewing Resumes for PERM.”)
The DOL classifies a gardener position as a “nonprofessional” occupation, because a person does not need a bachelor’s degree to perform the required duties. See “Employers' PERM Recruitment Responsibilities When Hiring Nonprofessional Workers” for what this classification means for the sponsorship process.
After the DOL approves the PERM, you would need to file an I-140 petition with U.S. Citizenship and Immigration Services (USCIS). By now, you will probably have already invested a year or two in the application process. But then, even after USCIS approves the I-140 petition, your gardener will likely have to wait years more before obtaining a green card.
Why the long wait? Because Congress has limited how many immigrants can receive green cards per year, and has divided the green card allotments into different preference categories. A gardener is classified in the third-preference of the employment-based category (EB-3). The EB-3 category is further divided into three subcategories, and gardeners fall under the "Unskilled Worker" category, since such jobs typically require less than two years of training or experience. There are many more EB-3 Unskilled Workerimmigrants applying for green cards than there are green cards available, so this category has become extremely backlogged, along with other popular categories.
To help allocate green cards to immigrants in backlogged categories, each immigrant is assigned a “Priority Date." Immigrants in backlogged categories must wait for their priority date to become “current” before filing their application. A gardener or other worker’s priority date is the date the employer first filed the PERM application with the DOL.
The Department of State publishes a monthly Visa Bulletin showing the current priority dates for all categories for that month. In the August 2012 Visa Bulletin, for example, the current priority date for most EB-3 workers was September 8, 2006 (except that workers from India, China, Mexico, and the Philippines had different, earlier priority dates due to higher demand).
The September 8, 2006 priority date meant that only gardeners whose employers filed PERM applications for them before September 8, 2006 were eligible to apply for green cards during the month of August 2012.
Is There No Hope for a Gardener in the U.S. Illegally?
Normally, a foreign national cannot obtain a green card if he or she is in the U.S. unlawfully, due to the penalties for unlawful presence described earlier. However, some narrow exceptions exist, as described in “Who Can Apply for a Green Card Through Adjustment of Status.” Again, you will probably need an attorney’s help to fully analyze the possibilities.