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Six reasons that employment-based Green Cards are denied

Immigrant employee applying for an employment-based green card

 

If you are preparing for an EB1, EB2, and EB3 green card interview, you have already spent a significant amount of time and energy filling out paperwork and gathering documents. The last thing you want is to be denied permanent residency for something that occurs during the final stages of the process. 

One of the best ways to prepare for your employment Green Card interview is to understand the pitfalls that could cause your application to be denied.    

1. Can They Pay You?

Your adjustment of status application will be denied if you are unable to prove that your sponsoring employer can pay your salary. This often occurs when the employer’s tax returns do not demonstrate the ability to pay the wage listed on the applicant’s 9089 form. The 9089 form is a document that requires your sponsoring employer to disclose information about your job title, duties, and wages. 

Screenshot of the form 9089 as a proof of employees job title, duties and wages

Your wages are critical even if you are already employed based on prior authorization, such as an H1-b non-immigrant visa. The salary that you are being paid must either be the same as the salary listed on your 9089 form, or greater than the salary listed on your 9089 form. If your salary is less than what appears on your 9089 form there is a good chance your application will be denied.

2. Did You Work Without Authorization?

Using your Social Security number for any unauthorized employment could prevent you from obtaining a Green Card. 

This sometimes occurs with students who are issued a Social Security number through an F-1 visa. An F-1 visa allows international students to enter the United States to study full-time. With an F-1 visa, a student has the opportunity to work, subject to certain restrictions. In general, a student with an F-1 visa is permitted to work in two situations:

  • on-campus, subject to certain restrictions, or
  • off-campus, in the student’s major area of study when the student has Optional Practical Training (OPT) status or Curricular Practical Training (CPT) status. 
Foreign student with F-1 visa working off campus in unrelated field can be a reason in employment green card denial.

Example: Suppose you are a student with an F-1 visa and you were issued a Social Security to number to work on-campus. If you take a job off-campus that has nothing to do with your major area of study, your application could be denied because you did not follow the rules regarding your F1 student status.

3. Things That Don’t Add Up in Your Work History

Your application can be denied if you provided conflicting information regarding your past employment to the U.S. consulate or embassy. The important thing to remember here is to be as honest and as accurate as possible throughout the entire process.  

In most cases, your journey to permanent residency as a worker will begin by applying for a temporary visa. This occurs at a U.S. embassy or consulate and generally involves an interview. During the interview you will be asked questions about yourself and your past work history. 

Later in the process, your sponsoring employer will have to submit a 9089 form. This document has personal information about you and your previous job experience. You will have problems at your final Green Card interview if the information in the 9089 form is inconsistent with what you provided to the U.S. consulate or embassy. 

Documents from all previous employments should be accurate and consistent in order to obtain an employment green card

Example: You entered the United States on a student visa. During your initial interview at the U.S. embassy, you truthfully represented that you had 5 years of teaching experience. While living in the United States you applied for a job as an office manager. You lied to the employer and said that you had 5 years of managerial experience. The employer hired you and became your sponsoring employer for your employment visa. 

Here is the problem. Before your final employment Green Card interview, your adjudications officer will compare what you said at the U.S. embassy to the documents submitted by your sponsoring employer. Your adjudications officer will discover that you misrepresented your work history. You falsely claimed that you had 5 years of managerial experience when in reality you were a teacher. Your adjudications officer could deny your application for a Green Card based on fraud.

4. Misusing a Tax ID or Social Security Number

Evidence that you used a separate tax ID or your Social Security number to open a US business could cause problems at your employment-based Green Card interview. 

Example: Suppose you are an EB-3 applicant (professional, skilled worker, or unskilled worker with less than two years of training, education, or experience) and you used your Social Security number to open a business. Your adjudication officer might interpret that you worked without authorization in violation of your present US immigration status, especially if you took any U.S. income out of your business. 

This is a scenario that is analyzed on a case-by-case basis when they review your U.S. company tax returns. 

5. Is All Your Income Legal?  

Income tax return discrepancies can be a basis for denial. There are many ways to legally earn an income before your employment Green Card interview. 

  • F-1 Visa. If you were issued an F-1 Visa, for example, you can work legally if you have Optional Practical Training (OPT) or Curricular Practical Training (CPT) status. 
  • Employment Authorization Document (EAD). Similarly, you can earn an income if you have an EAD. It permits Green Card applicants to work until a Green Card is issued.
  • H-1B Visa. This visa provides for temporary work in a specialty occupation. 

In all of these cases, your tax return will show that you have earned additional U.S. income. Be prepared to explain that this income was not the result of illegal employment. If you don’t want to put your immigration status at risk, make sure you have the financial records to prove that this income was legal.

tax return form in a folder and a cup of coffee on the table with dark background

Helpful tip: It is also a good idea to retain copies of any forms you submitted throughout the process, including documents you submitted to the U.S. embassy or consulate, like DS-160 form. This will allow you to review all your information ahead of time and prepare for any inconsistencies before the interview.

6. Your Future With Your Sponsoring Employer is in Doubt

Your application can be denied if there is evidence that you will not be working for your sponsoring employer after receiving a Green Card.

Employment-based Green Card applications are based on two factors: 

  • your intent to work for your employer, and
  • your employer’s intent to permanently hire you. 

The adjudications officer could refuse to issue a Green Card if there is evidence that you intend to leave your sponsoring employer after receiving your Green Card, or that you are not pursuing a permanent position with your employer.

An immigrant employee looking at his phone on the street

Any one of the issues discussed above could result in your Green Card being delayed or denied, but all of them can be resolved if they are avoided or addressed prior to your interview. It’s a good idea to double-check your work history and your situation with your sponsoring employer to make sure everything is in order well in advance of your final Green Card interview.

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