Before beginning a PERM case, an employer must always check the immigration history of the foreign national to confirm that he or she is eligible to receive permanent residency, and whether the applicant may expect to apply by Adjustment of Status or by Consular Processing.
Focus must be placed on determining that the foreign national has always maintained status in the United States – whether it by as a temporary visitor for pleasure, business, as a student or in an authorized category of work.
In addition to the Resume and Diplomas of the foreign worker, it is recommended to ask the worker to provide a time line to prove maintenance of status.
This can be done by establishing an unbroken line of authorized stay and status in the US, and by confirming that the applicant has not worked without authorization by proving the monthly income from the time of first entering the United States.
The issue of maintenance of status is more acute for visitors and students who rely entirely on funds from abroad. They should be prepared to provide all their income during stays in the United States – whether by credit cards from abroad, bank transfers, cash brought legally into the US, gifts, or other lawful receipts of valuable goods or services.
While the word “work” is not defined in the Immigration and Nationality Act and is only obliquely referred to in the regulations and other guidance, it should be construed to mean an exchange of services for valuable consideration.
There are nuances such as persons paid abroad while on business trips to the US or entrepreneurs who may be on US soil managing their business abroad by phone or internet. These persons would not be “working” without authorization in the US, but, even so, they may be violating their status. Examples of these nuanced situations are abundant. The one that comes to mind is the Hong Kong Tailor who may enter the US as a visitor to take measurements but may not sew or manufacture the clothing in the US.
If the applicant is found to be ineligible for adjustment of status, an interview for permanent residency should be held in the US Consulate abroad. It is not a basis for ineligibility to have failed to maintain status in the US, however, it untruthful statements regarding same in connection with an adjustment of status application would create a new ground of ineligibility in the category of fraud or misrepresentation.
For someone in student status, there are two lines of inquiry to determine eligibility for adjustment of status:
  1. Has the individual been studying full-time, the whole time? This is determined by creating a time line of documents in chronological order. The schools use form I-20 to show that the student is in status. The I-20’s have start and end dates, and the dates of all the I-20’s should be uninterrupted back to back. Furthermore, the time in student status had to be full-time. Granted, the schools are allowed some flexibility to define “full-time.” It’s usually a number of hours per week or a number of credits per semester. The student must provide us with this documentation to prove that she has maintained her student status.
  2. The second line of inquiry is whether the student has supported herself with her own funds, or whether she is working illegally. When someone is here from a country which has a bad exchange rate with the US, and the student has been here a long time, it is natural for the examiner to imagine that illegal work may be involved. The way to prove legal source of support, a monthly budget should be prepared. After establishing the budget, it is then necessary to show where the funds came from each month to pay for the expenses in the budget.

In summary, if the foreign worker is not eligible for adjustment of status, he or she should still be able to apply for permanent residency by asking for an interview in the US Consulate abroad, since unauthorized employment and other kinds of failure to maintain status cause the applicant to be statutorily ineligible to adjust status in the USA.