The main point of immigration is to provide a path for which individuals and their families can improve their lives in the US. This is true whether the path takes you through an employer-sponsored H1B or similar visa or the adjustment of status or consular processing of a green card as a result of a family relationship. The rules for obtaining immigration approval for employees or family is very strict and very technical. As a result, it is often very difficult to get past the first part of the approval process (labor certification or conditional residency) and obtain your work visa or your full permanent residency. The general rule is that the process is “owned” by your sponsor whether employer or family member. It is not well-known to most people, but there are exceptions to this strict rule for people who run into unresolvable problems with their sponsors.
For example, I have had clients come and tell me: “My employer sponsored my visa, but there are many problems in the company and it is nothing like what they told me it would be. I was told that I had no choice but to keep working for them although I really dislike being there. Is this true?”
No! Although most green card or visa processes require a sponsor whether it is an employer with an H1B visa or with a husband’s petition through the consular processing or adjustment of status process, this individual or business does not always have complete control over an individual’s process. Although their sponsorship is absolutely necessary to begin the process, things can change later on in the process that enable people to get out of the requirement of having their continued support or sponsorship.
A US employer must initiate the work visa process and obtain underlying approvals from the Department of Labor to hire a foreign national and then must provide these approvals (and additional information) to immigration on behalf of their employee so that they can obtain a work visa. Once the visa is approved, however, the employee does have options if the relationship hits a bad spot or if the employer has business-related problems that could threaten the employee’s ability to stay in the US. Under these and similar circumstances, an employee has the ability to change jobs and to get an approved H1B visa transferred to another company. It may not be simple to do so, but it is important that foreign workers know that they are not “stuck” under the complete control of their sponsoring employer.
More often that employer problems, however, are questions about family-based immigration. I have had clients come to me with very similar questions as this: “After we got married, my husband began hitting and abusing me. He says I can never divorce him because I would lose my green card. Is this true?”
No! Like with employment visas, a family-sponsored green card process also has a way for individuals to obtain full green cards (instead of conditional approvals) even if the sponsor is no longer willing or able to assist (or maybe the sponsor died).
I have had several clients over the years come to me because they have started the immigration process and even received their residency, but later on their spouse threatens to have their residency cancelled and have them deported to their original country. Whether it was their objective in the beginning to abuse their spouse or not, the immigration process cannot be used as a mechanism for control like this. Whether or not they believe they have this power, thankfully there are rules in place for individuals to be able to self-sponsor their own green card if they can show that their spouse is using the process to manipulate or abuse them. In both the above cases, the government will allow the applicant or visa holder to obtain a green card or visa approval without the assistance of their original sponsor.