Worked illegaly on F1, now OPT to H1B

[dukk10453 0]

The girl was first on a J-1 visa in 2006, and she came next year on a J-1 visa again, applied to school here and was issued I-20 and studied one semester without renewing her passport visa, but when got back to consulate they denied her F-1 visa. She then applied again one year later and was issued the F-1 visa without any issues. Successfully completed school and applied and got OPT. Then she found a job in the area of study and started working with the OPT. Now her company will sponsor her for H1B. The problem is she has worked as a waitress on her social security since 2009 which is obviously illegal. The question is when applying for H1B, what does she have to do in regards to W2 forms? They are asking you to provide your W2 forms, but if she does USCIS will know she worked illegally for 3 years. If she doesn’t, she might get away with it since she has been in status on F1. Is it a good idea to travel somewhere and then get back in the US (has visa on her passport until Dec 2012) since USCIS only looks after your last entry date?

[Bobby+Umit 161]

She should not lie - or try to "get away with it".

USCIS has these magical devices called computers - and they can research and find out all kinds of info.

If she used her SSN - it's on record she worked.

If she doesn't claim it - and USCIS finds out later, she just committed misrepresentation - and worst case - lifetime ban.

Is it a good idea to travel somewhere and then get back in the US (has visa on her passport until Dec 2012) since USCIS only looks after your last entry date?

Really? They do? I never heard of that.

[AKSinghSingh79 143]

The girl was first on a J-1 visa in 2006, and she came next year on a J-1 visa again, applied to school here and was issued I-20 and studied one semester without renewing her passport visa, but when got back to consulate they denied her F-1 visa. She then applied again one year later and was issued the F-1 visa without any issues. Successfully completed school and applied and got OPT. Then she found a job in the area of study and started working with the OPT. Now her company will sponsor her for H1B. The problem is she has worked as a waitress on her social security since 2009 which is obviously illegal. The question is when applying for H1B, what does she have to do in regards to W2 forms? They are asking you to provide your W2 forms, but if she does USCIS will know she worked illegally for 3 years. If she doesn’t, she might get away with it since she has been in status on F1. Is it a good idea to travel somewhere and then get back in the US (has visa on her passport until Dec 2012) since USCIS only looks after your last entry date?

I'll give you one piece of advice, never ever lie to USCIS!

If her lie was discovered, she would be facing a lifetime ban from the US.

I'm not sure what the consequences will be for her from working on a student visa. I assume because she violated the rules regarding no employment while studying, that she will be considered as being out of status. Depending on how long she worked illegally, she could be facing a 3 or 10 year ban and would need to file a waiver. Again, I'm not sure about this.

[aaron2020 11,651]

This girl is basically screwed.

As Bobby+Umit has pointed out, the US government have everything on computer databases. USCIS will run a background check. USCIS will check her SSN with the IRS. USCIS will find out that she has been working illegally because her employer reported the wages he paid her.

If she lie by claiming she has not worked, she will be ban for life when USCIS check her SSN with the IRS.

If she tell the truth, she will have to deal with the consequences of working illegally.

----

Leaving the US and USCIS only checking the last time a person enter - don't be silly. USCIS has a database. They look at everything. It's not so easy to fool USCIS.

Edited January 31, 2012 by aaron2020

[dukk10453 0]

I was talking about Section 245(k)

-----------

Generally, with the exception of “immediate relatives,” the law provides that anyone who violates their nonimmigrant status may not adjust status to lawful permanent residency. Section 245(k) of the Immigration and Nationality Act provides relief from ineligibility to adjust status based on violations of nonimmigrant status. The specific statutory language provides:

“Sec. 245(k) Inapplicability of certain provisions for certain employment-based immigrants.--An alien who is eligible to receive an immigrant visa under paragraph (1), (2), or (3) of section 203(b) (or, in the case of an alien who is an immigrant described in section 101(a)(27)©, under section 203(b)(4)) may adjust status pursuant to subsection (a) and notwithstanding subsection ©(2), ©(7), and ©(8), if--

(1) the alien, on the date of filing an application for adjustment of status, is present in the United States pursuant to a lawful admission;

(2) the alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days--

(A) failed to maintain, continuously, a lawful status;

(B) engaged in unauthorized employment; or

© otherwise violated the terms and conditions of the alien's admission.”

This section applies as well to dependents of principal applicants who are accompanying or following to join the principal employment based applicant. An applicant need not file any additional documentation or pay an additional fee to receive the benefits of this section.

In applying this provision, the USCIS must first determine when the adjustment applicant was last lawfully admitted into the United States. Parole is not considered a “lawful admission.” For purposes of this section, the last lawful admission means the last time the applicant used a nonimmigrant visa to enter the US from abroad.

That date is important because no status violation that occurred before that date may be counted against the 180 day maximum limit. Using the last lawful admission as a benchmark, the CIS adjudicator must then count the number of days, if any, that constitute a status violation or unauthorized employment. Status violations such as doing something inconsistent with the individual’s nonimmigrant category (working while on a visitor’s visa) will be counted, as will all days the person remained in the US after his or her I-94 expired. The counting of these days stops, however, as of the date the I-485 is filed. Unauthorized employment, on the other hand, continues to be counted after the filing of an adjustment of status application.

If the adjustment applicant has 180 days or more of status violations, in the aggregate, then the applicant is no longer eligible for adjustment of status and their application must be denied on that basis alone. If, as of the date the adjustment application is adjudicated, the total is less than 180 days, then the applicant remains eligible and may adjust status.

The term “aggregate” means individual days, taken together as a group. For example, if an applicant works without authorization for two calendar weeks, in most cases that would constitute an aggregate of ten days of unauthorized employment – the ten days actually worked. The smallest portion of a day of unauthorized employment counts as an entire day, however.

-------

[GCPony 14]

I was talking about Section 245(k)

-----------

Generally, with the exception of “immediate relatives,” the law provides that anyone who violates their nonimmigrant status may not adjust status to lawful permanent residency. Section 245(k) of the Immigration and Nationality Act provides relief from ineligibility to adjust status based on violations of nonimmigrant status. The specific statutory language provides:

“Sec. 245(k) Inapplicability of certain provisions for certain employment-based immigrants.--An alien who is eligible to receive an immigrant visa under paragraph (1), (2), or (3) of section 203(b) (or, in the case of an alien who is an immigrant described in section 101(a)(27)©, under section 203(b)(4)) may adjust status pursuant to subsection (a) and notwithstanding subsection ©(2), ©(7), and ©(8), if--

(1) the alien, on the date of filing an application for adjustment of status, is present in the United States pursuant to a lawful admission;

(2) the alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days--

(A) failed to maintain, continuously, a lawful status;

(B) engaged in unauthorized employment; or

© otherwise violated the terms and conditions of the alien's admission.”

This section applies as well to dependents of principal applicants who are accompanying or following to join the principal employment based applicant. An applicant need not file any additional documentation or pay an additional fee to receive the benefits of this section.

In applying this provision, the USCIS must first determine when the adjustment applicant was last lawfully admitted into the United States. Parole is not considered a “lawful admission.” For purposes of this section, the last lawful admission means the last time the applicant used a nonimmigrant visa to enter the US from abroad.

That date is important because no status violation that occurred before that date may be counted against the 180 day maximum limit. Using the last lawful admission as a benchmark, the CIS adjudicator must then count the number of days, if any, that constitute a status violation or unauthorized employment. Status violations such as doing something inconsistent with the individual’s nonimmigrant category (working while on a visitor’s visa) will be counted, as will all days the person remained in the US after his or her I-94 expired. The counting of these days stops, however, as of the date the I-485 is filed. Unauthorized employment, on the other hand, continues to be counted after the filing of an adjustment of status application.

If the adjustment applicant has 180 days or more of status violations, in the aggregate, then the applicant is no longer eligible for adjustment of status and their application must be denied on that basis alone. If, as of the date the adjustment application is adjudicated, the total is less than 180 days, then the applicant remains eligible and may adjust status.

The term “aggregate” means individual days, taken together as a group. For example, if an applicant works without authorization for two calendar weeks, in most cases that would constitute an aggregate of ten days of unauthorized employment – the ten days actually worked. The smallest portion of a day of unauthorized employment counts as an entire day, however.

-------

Ummm- Since you know all the answers and won't accept what people have suggested as proof otherwise, what and why are you asking us for?

[aaron2020 11,651]

I was talking about Section 245(k)

-----------

Generally, with the exception of “immediate relatives,” the law provides that anyone who violates their nonimmigrant status may not adjust status to lawful permanent residency. Section 245(k) of the Immigration and Nationality Act provides relief from ineligibility to adjust status based on violations of nonimmigrant status. The specific statutory language provides:

“Sec. 245(k) Inapplicability of certain provisions for certain employment-based immigrants.--An alien who is eligible to receive an immigrant visa under paragraph (1), (2), or (3) of section 203(b) (or, in the case of an alien who is an immigrant described in section 101(a)(27)©, under section 203(b)(4)) may adjust status pursuant to subsection (a) and notwithstanding subsection ©(2), ©(7), and ©(8), if--

(1) the alien, on the date of filing an application for adjustment of status, is present in the United States pursuant to a lawful admission;

(2) the alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days--

(A) failed to maintain, continuously, a lawful status;

(B) engaged in unauthorized employment; or

© otherwise violated the terms and conditions of the alien's admission.”

This section applies as well to dependents of principal applicants who are accompanying or following to join the principal employment based applicant. An applicant need not file any additional documentation or pay an additional fee to receive the benefits of this section.

In applying this provision, the USCIS must first determine when the adjustment applicant was last lawfully admitted into the United States. Parole is not considered a “lawful admission.” For purposes of this section, the last lawful admission means the last time the applicant used a nonimmigrant visa to enter the US from abroad.

That date is important because no status violation that occurred before that date may be counted against the 180 day maximum limit. Using the last lawful admission as a benchmark, the CIS adjudicator must then count the number of days, if any, that constitute a status violation or unauthorized employment. Status violations such as doing something inconsistent with the individual’s nonimmigrant category (working while on a visitor’s visa) will be counted, as will all days the person remained in the US after his or her I-94 expired. The counting of these days stops, however, as of the date the I-485 is filed. Unauthorized employment, on the other hand, continues to be counted after the filing of an adjustment of status application.

If the adjustment applicant has 180 days or more of status violations, in the aggregate, then the applicant is no longer eligible for adjustment of status and their application must be denied on that basis alone. If, as of the date the adjustment application is adjudicated, the total is less than 180 days, then the applicant remains eligible and may adjust status.

The term “aggregate” means individual days, taken together as a group. For example, if an applicant works without authorization for two calendar weeks, in most cases that would constitute an aggregate of ten days of unauthorized employment – the ten days actually worked. The smallest portion of a day of unauthorized employment counts as an entire day, however.

-------

Look at what I have highlighted.

First, "the law provides that anyone who violates their nonimmigrant status may not adjust status to lawful permanent residency." There are many ways to violate a nonimmigrant status. One big one is working illegally. This girl violated her nonimmigrant status by working illegally. The law says she cannot adjust her status to an LPR.

Second, there is an exception for certain employment based immigrants IF they have not engaged in unauthorized employment. This girl doesn't meet the exception because she engaged in unauthorized employment.

--------------------

This girl is screwed. She violated the law, and there is nothing that will help her. Her only hope to get a green card is to marry a US citizen. That's her only option.

[dukk10453 0]

Thank you for your response. If she omits the W2 information from her current H1B application and gets caught and her application rejected would she still be in status under her OPT which expires in the summer? Could she find a 'husband' and begin the process of obtaining a green card after the H1B rejection and continue to work legally at her current job?

[AKSinghSingh79 143]

Thank you for your response. If she omits the W2 information from her current H1B application and gets caught and her application rejected would she still be in status under her OPT which expires in the summer? Could she find a 'husband' and begin the process of obtaining a green card after the H1B rejection and continue to work legally at her current job?

You seem to be implying committing marriage fraud to get around the mess this girl has created for herself.

Marriage to a US citizen will allow forgiveness for an immigrant who has worked illegally. However, marrying for a greencard is fraud and illegal.

If you're looking to break the law, this site is not for you.

[aaron2020 11,651]

Thank you for your response. If she omits the W2 information from her current H1B application and gets caught and her application rejected would she still be in status under her OPT which expires in the summer? Could she find a 'husband' and begin the process of obtaining a green card after the H1B rejection and continue to work legally at her current job?

No. Omitting her W-2 information would be a Material Misrepresentation affect her application. This is a lifetime ban. If she is rejected because USCIS found out that she lied on her application, she is done - finished - no way out. She will lose her OPT. Even a US husband will not help at that point - illegal work is forgiven for a US spouse, but lying is not forgiven for having a US spouse. USCIS don't take lying lightly.

Edited January 31, 2012 by aaron2020

[Krikit 1,164]

One post removed and thread closed for Terms of Service violations.