Need advice! F1 married to LPR waiting for F2A/AOS with some unauthorized work

[cocanicola 1]

I got to the US in 2015 with one-year J1 visa. Halfway through I got married to my wife, a GC holder. PD date is jan 2016. Before my J1 expired i changed status to F1 in order to remain legally present in the country. However, while on F1, i worked on my ssn for about 2-3 months, which is what really concerns me now. We have just received a welcome letter from NVC with case number, asking to submit documents in order to schedule a visa interview in my home country. We don't know what to do, and we're scared that i'll get refusal on change of status here or even worse, refused in the consulate if we choose to do it there. She isn't going to become a citizen soon (not before early 2020).

 

What to do? Thanks for all answers in advance...

[Coco8 1,039]

How were you able to work without presenting any additional ID besides your SSN? Did they report it to the IRS? Did you file taxes?

 

I know it is usually forgiven for those married to USC, but not for LPR. Maybe consult a very good lawyer? You mention about going to the consulate and them finding out, but you cannot really stay either because you can get deported, right?

 

 

 

[azblk 338]

You have a problem. Unless you are an immediate relative of a US citizen you can not adjust status in the US if you worked illegally. So basically you can wait the 3 years on your F1 visa while your spouse becomes an American citizen or you can do consular processing.  If you file i-485 it will be denied due the illegal work.

[cocanicola 1]

Unfortunately yes, we filed taxes. And yes, if we file for AOS (i-485) and other documents, I'm afraid i'll get denied and then deported. If i go to Serbia and try through consulate, I'll get denied and pretty much without possibility of returning to the US.

I have read somewhere that illegal presence or work for less than 180 days can be overlooked. Does anyone have experience with this?

[geowrian 22,336]

There's really not much to do...if asked, tell them the truth. You can't undo the past.

 

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter6.html

 

2 minutes ago, ludoburazere said:

I have read somewhere that illegal presence or work for less than 180 days can be overlooked. Does anyone have experience with this?

You're filing for family-based AOS, not employment-based AOS, which is where there's an exemption. See footnote #12 in the above linked document.

[Coco8 1,039]

17 minutes ago, azblk said:

So basically you can wait the 3 years on your F1 visa while your spouse becomes an American citizen 

Does this mean he could wait in the US and when the spouse becomes USC they can AOS? Is this legal?

[geowrian 22,336]

2 minutes ago, Coco8 said:

Does this mean he could wait in the US and when the spouse becomes USC they can AOS? Is this legal?

Correct, if he retains legal status during that period (I won't encourage anybody to overstay...albeit F-1s are usually admitted for Duration of Stay). The unauthorized work will be ignored for AOS as the spouse of a USC.

[cocanicola 1]

28 minutes ago, azblk said:

So basically you can wait the 3 years on your F1 visa while your spouse becomes an American citizen or you can do consular processing.

In that case, will my wife have a problem when she applies for citizenship, having in mind she's married to an illegal alien? I don't want to jeopardize her status here.

If I go to consular processing, does the consul have a discretion to ignore/pardon my illegal work and approve my visa? What are the chances...

[azblk 338]

12 minutes ago, Coco8 said:

Does this mean he could wait in the US and when the spouse becomes USC they can AOS? Is this legal?

Yes it is legal as long as he stays in school and doesn't otherwise violate the terms of his status alternatively he can opt for consular processing and return home for visa.

[Coco8 1,039]

7 minutes ago, azblk said:

Yes it is legal as long as he stays in school and doesn't otherwise violate the terms of his status alternatively he can opt for consular processing and return home for visa.

I think his J1 expired. That is what it says.

 

7 minutes ago, ludoburazere said:

In that case, will my wife have a problem when she applies for citizenship, having in mind she's married to an illegal alien? I don't want to jeopardize her status here.

If I go to consular processing, does the consul have a discretion to ignore/pardon my illegal work and approve my visa? What are the chances...

Consuls have some discretion but it is a flip of a coin, really.  There is no pardon for spouses of LPR. 

 

If it helps, I've read some threads from people from Mexico that are in similar situations. Maybe one of them will comment here or try finding your threads and asking them directly.

 

 

Edited June 30, 2017 by Coco8

[azblk 338]

In that case, will my wife have a problem when she applies for citizenship, having in mind she's married to an illegal alien? I don't want to jeopardize her status here.

1. No - For one you are not an illegal alien. You have a F-1 visa. But even you were illegal it would not jeopardize her status here.

If I go to consular processing, does the consul have a discretion to ignore/pardon my illegal work and approve my visa? What are the chances...

 

2. Depends on what your i-94 says. If it is D/S then even though you violated the terms of your visa you are not considered out of status until there is a formal ruling on your status by a judge or during adjudication of another petition and as such you don't accrue unauthorized presence until such a ruling is made. so what this means is you wont be subject to the 3/10 year bars. so you can continue the process in home country.

[azblk 338]

6 minutes ago, Coco8 said:

I think his J1 expired. That is what it says.

 

Consuls have some discretion but it is a flip of a coin, really.  There is no pardon for spouses of LPR. 

 

If it helps, I've read some threads from people from Mexico that are in similar situations. Maybe one of them will comment here or try finding your threads and asking them directly.

 

 

in his first post he says he changed it to F-1. That is the thing he does not need to be pardoned for anything if he goes home. read my previous post

 

[cocanicola 1]

Just to clarify, I was never out of status. I was on J1 and before it expired, changed it to F1. 

Edited June 30, 2017 by ludoburazere

[Coco8 1,039]

 

5 minutes ago, azblk said:

in his first post he says he changed it to F-1. That is the thing he does not need to be pardoned for anything if he goes home. read my previous post

 

 

Oh! Sorry, I got confused between F1 and F2! I agree with you. It is better to wait with the F-1 in the US and then AOS. 

 

To begin with, if you  (OP) need to work, you can work on campus. 

 

Second, how long do you (OP) have left in your studies? Is this undergrad or grad? After F-1 you will have OPT (if you do STEM you will have 2 years). There are ways to drag your studies (I did it). 

 

Third, your J1 doesn't have the 2 year requirement, right? 

 

 

 

 

 

Edited June 30, 2017 by Coco8

[azblk 338]

4 minutes ago, ludoburazere said:

Just to clarify, I was never out of status. I was on J1 and before it expired, changed it to F1. 

That's where it gets technical. If you don't have D/S on your i-94, you  went out of status the day you accepted unauthorized employment even if the government may not be aware of it. So to calculate how long you have been here illegally they would start counting from that date.  On the other hand if you have D/S on i-94 then the count starts when they formally rule you out of status.