So close to AOS, but am I inadmissible?

[abishai 0]

(Hi everyone, sorry if this is in the wrong section).

I've been out of status since 1999. My fiance and I plan on getting married in two weeks (been together 3 years) and are looking forward to fixing my situation but there's a mistake in my past that has me really nervous.

I came in 1994 on an F1. In 1996 I went back to Mexico for the holidays but for some reason, I never got my I20 endorsed. Not knowing what to do and fearing getting turned back, I presented my tourist visa to reenter. That was my last entry into the U.S.--I graduated in 1998, got OPT and then overstayed until now.

So basically the documentation I have right now to prove inspection is

1) an i94 with a stamp saying I was here as an F1 with D/S expiry

2) tourist and F1 visa stamps (they're old school, from 1994)

3) entry stamps including the last one dated from 12/28/1996 (none of the stamps have an expiration date written in)

and 4) the I-20 signed for the last time around 12/13/1995, so the endorsement expired a few days before I returned, leaving me wondering if I got delayed at home... but I guess that's neither here nor there now.

I talked to a lawyer about this and he basically said it was "interesting" but that he didn't see it being much of a problem, that "at worse" I'd be found to have misrepresented my intent and have to get a waiver. That was not very comforting!

How bad is this situation? Should I be worried? Do I need to check "Yes" in the portion of i-485 that asks about material misrepresentation?

Thanks to anyone who can give me an idea of what to expect! And again, please move this if it's in the wrong section.

[NikLR 13,234]

*** moved to AOS from work, student or tourist visas from IR1/CR1 process and procedure ***

[Harpa Timsah 13,261]

How bad is this situation? Should I be worried? Do I need to check "Yes" in the portion of i-485 that asks about material misrepresentation?

What do you think you have misrepresented? You still had school to attend when you entered, because you got OPT, so I don't know what you think you did wrong.

[Hypnos 6,579]

I think she's concerned that she most recently entered on a B-2 but attended school and represented to others that she had (re-)entered on her F-1.

It's an interesting question. I personally don't believe it is an issue, since you can prove a legal entry (F-1, B-2, it doesn't matter) but you may want to consult with a couple of others lawyers, or perhaps ask over on http://www.avvo.com and see what lawyer opinions are there before proceeding.

[abishai 0]

Thanks for the replies. Hypnos, you are correct in that that's what the attorney mentioned could be construed as misrepresentation--that I entered stating I was a tourist but planning to resume my studies. Having done some research now, I probably would have been better off presenting the I-20 but there's nothing to do about that now.

I think I'll get a few more opinions as you suggested. I still would love to hear any thoughts anyone else may have. Thanks!

[Harpa Timsah 13,261]

Ah, thanks, I skipped over those few words. How did you get OPT when you were really on a tourist visa?

Edited July 6, 2013 by Harpa Timsah

[abishai 0]

I did have an F-1, it's just not what I used to cross the border that one time. It's all kind of a confused mess, really.

[Harpa Timsah 13,261]

Right, but if you entered on a tourist visa, you were not on your F-1 visa. So how did you get OPT?

[abishai 0]

I guess it was an oversight since I never told anyone. Weird to be finding out over 15 years later that I was out of status all along.

[abishai 0]

Mind you, I didn't know I was losing status. I thought as long as I was entering with a valid visa it was ok.

[Darnell 8,479]

Right, but if you entered on a tourist visa, you were not on your F-1 visa. So how did you get OPT?

He/She had a nice DSO at the uni.

[FelixTX 2]

He/She had a nice DSO at the uni.

I dont even think it was that, I think it was way more relaxed with immigration Pre 9/11 especially in the 90's... And even this year if anyone followed the events in Boston, one of the friends of the bomber, entered the US without a valid I20 and his status should have been terminated multiple weeks before, but he still managed to come back to the US without any trouble at the POE...

[jkb11 26]

The way I see it:

In order to work, OP had to get his EAD. To get EAD, he had to file I-765 with USCIS. USCIS wouldn't have granted EAD if OP disclosed he entered on his B2 visa instead of his F1. I-765 explicitly asks for the applicant's current status. So, this looks like willful misrepresentation to procure EAD, which means OP is inadmissible according to 212(a)(6)©(i), and thus, ineligible to adjust status.

Comments?

[Sveta & Ron 23]

the true question now is how will the ( I graduated in 1998, got OPT and then overstayed until now.) affect her now. think most on vj over looked this

[abishai 0]

Jkb11, I see what you're saying. As I mentioned, I believed I was in status when I applied for the EAD and that I was presenting accurate information in the application. Whether that's enough, I don't know.

As for the overstay, I'm getting married (which is why I originally posted this in another section) so my understanding is that would be forgiven.