You’d hate to lose your trusty handyman. You've hired him to work in and around your house, he's a hard worker, but he’s not a U.S. citizen and he doesn’t have a green card. In fact, you’re not sure whether he has any legal authorization to live and work in the United States at all. Is there anything you can do to keep him in the country?
As a general rule, it is illegal to hire anyone for “employment” if you know he or she is not authorized to work in the United States. You’re okay, however, if you hired your handyman for “casual employment” in a private home and such employment is “sporadic, irregular, or intermittent.” This type of employment isn’t subject to the law against knowingly hiring someone who’s not authorized to work.
If you want to expand your handyman’s work assignments to take place outside your home(s), or if you want to employ him on a regular schedule, however, don’t do it until you see and verify evidence of work authorization. For articles on the verification process, see Hiring Non-U.S. Workers for Your Business.
It’s possible to live and work in the U.S. temporarily without a green card, sometimes for a number of years. Work authorization can be general (allowing someone to take any kind of job pursuant to their immigration status) or it may be limited to a type of job for which a visa was given (like an H-1B visa, which requires the visa holder to work in a “specialty occupation”).
Your handyman probably knows if he’s got work authorization—it’s a very valuable thing to a foreign-born worker! If he’s not sure, or if you’d like to help him get work authorization without a green card, you might want to consult with an immigration lawyer.
Unfortunately, there aren’t any work-specific temporary visas available to a full-time handyman. The H-2B visa, for temporary nonagricultural workers, is the only appropriate visa you could attempt to secure for a handyman, but it is limited to one-time, seasonal, peak-load, or intermittent employment needs. If you want to employ a handyman on such a basis, see H-2B Visa for Temporary Nonagricultural Workers: Who Qualifies?
If your handyman could get a green card, you could hire him without any kind of restriction on the work he could do for you. As a practical matter, however, it will be hard for your handyman to get a green card through his job with you. The difficulty lies in the current state of our immigration system, which presents several major obstacles.
First, as the prospective employer, you will need to get “labor certification” from the U.S. Department of Labor (DOL), after proving that are that there are not sufficient U.S. workers able, willing, qualified, and available to accept the job opportunity in the area of intended employment and that employment of your handyman will not adversely affect the wages and working conditions of similarly employed U.S. workers.
The DOL has a process known as “PERM” by which you get labor certification. It involves, among other things, advertising the job in a specific manner and offering a certain minimum compensation (the “prevailing wage”) for the job. You are required to pay all the costs associated with labor certification. For more information on the PERM process, see "Employer Recruitment Requirements Under PERM." As you might imagine, it could be difficult to advertise a handyman job without attracting a lot of interest from able, willing, qualified, and available candidates.
Assuming you get over the PERM hurdle, your next step is to file Form I-140 (“Immigrant Petition for Alien Worker”) with U.S. Citizenship and Immigration Services (USCIS). This lets the government know that your handyman is eligible for a green card on the basis of his employment with you. The category of visa applicable to your handyman is known as “EB-3.” For more information on the I-140 petition, see Filling Out Form I-140 to Sponsor an Immigrant Worker.
As the system stands today, there is one last roadblock your handyman is faced with. The number of EB-3 visas the U.S. government gives out each year is limited, both in total number and in the number given to persons from any one country each year. Because more people with approved I-140 petitions are seeking EB-3 visas than the number of visas available, a waiting list has developed.
Your handyman’s place in line is determined by the date you filed the labor certification application. In visa lingo, that date is called his “priority date.” Every month, the U.S. Department of State’s Visa Office announces who can start applying for a visa (green card) by announcing a cutoff date: people with priority dates before the cutoff date can apply, while people with priority dates after that will need to keep waiting for their date to become “current.” In the EB-3 category under present conditions, your handyman will have to wait for several years for his priority date to be called current.
What are you and your handyman supposed to do in the meantime? You must hope that your handyman has some other legal basis to remain and work in the United States. If he doesn’t, you won’t be able to keep employing him except in a private home on a “sporadic, irregular, or intermittent” basis.
If your handyman can wait, and you don’t mind agreeing to hold the job open for him years into the future, then when his priority date becomes current he can apply for a green card by either “adjustment of status” within the U.S., if he’s eligible to use this procedure (see Adjustment of Status Procedures), or by obtaining a visa at a U.S. consulate overseas (see Consular Processing Procedures).
Both adjustment of status and consular processing require your handyman to be “admissible” to the United States. If your handyman has accumulated a certain amount of “unlawful presence” in the U.S., it will impact his admissibility. (See Consequences of Unlawful Presence in the U.S.--Three- and Ten-Year Time Bars.) He should consult with an immigration attorney if he knows or suspects he has ever entered the U.S. illegally or failed to leave when a visa expired.