AOS while on OOS. A pretty unique situation...Who can tackle this?

[XOF FOX 0]

Hi all, 

 

Firstly, I just want to express what a god send this forum is in answering many of the questions in the complicated immigration process. People who share information here do more than just give opinions and offer perspectives, they also help people feel secure through this continuously intimidating process. So to the forum, kudos. 

I am an Australian national who entered the United States who arrived in July 2015. I went out of status October 2015. Prior to this I had help various student visas and visa waivers without violation. I had no intention of overstaying or getting married during that last entry, and I don't think I will have any problem proving that. I started an unexpected relationship during this period, which frankly,  was the primary motivating factor for going out of status. In addition, i had failed to fully get my affairs in order prior to having to leave (i had been in the country for the majority of my adult life on student visas, so therefor had a lot of loose ends to tie up). I basically planned to just make sure I left before the 180 days. Well... you know how that goes. To get to the point we were married in my county of residence in October 2016. It is bonafide as can be, with plenty of supporting evidence, so I'm not worried about fraud, but here's where it gets messy:

I was arrested and very briefly detained (about 4 hours) in the local jail in 2016 for 'probable cause narcotics'. I sat in the jail, cleared all holds and was released. Basically the police entered the residence that I was living in at the time, found some MJ and asked me who it belonged too. I told them that I would cooperate 100%, but would invoke my right to talk to a lawyer first. They basically gave me the ultimatum which was, either answer our questions, or seeing as you do not possess a US ID, we will take you to jail for probably cause to make sure you are not wanted for anything else. Basically they tried to have me cooperate to avoid stepping foot in a jail. I was certainly tempted, and you may ask why the hell I didn't just answer their questions, especially considering I knew that this would not be good for my immigration application, but the truth is it all happened very quickly, and all though i found the officers to be professional and pretty damn decent, I had read online, as well as been told by a lawyer, to never answer questions of any description if you are arrested, even if you are innocent, without a lawyer present. At the end of the day, I didn't know these officers, nor did I know if i could trust their word, nor am I a legal expert, so I decided to keep my mouth shut to avoid any possible unintentional implications of having my words somehow used against me or whatever. I was not trying to protect anyone by not speaking, but just trying to protect myself from inadvertently making a statement that could hurt me. I had never been in trouble ever before or since with the law, so I aired on the side of caution, even though I knew it could hurt me, it seemed like the good decision at the time. 

                   Obviously this makes me worried about considered being inadmissible due to a crime of moral turpitude. Just to confirm, I did not commit a crime, was not charged, did not appear in court, and have no subsequent criminal history. As far as I can tell all i have is a record of the arrest, which like I said resulted in me being processed (fingerprints, picture) in the local jail and released once I cleared all holds. I have never received any correspondence from ICE or anything like that, and have my current address openly registered with everyone that needs it. What do members think my chances of having an issue with this are? I do intend to tick YES to the question of have you ever been arrested and explain the same I did here, as well as attach certified copies from the arresting bureau and county that I was never actually charged or convicted. But do I need to fill out a I-601 in regards to this? I am currently in the united states, so if i do, does that now become an I-601a? Do I have to tick the box about a crime of moral turpitude even though I was never charged or convicted? (section A, Q4) or, the box about a controlled substance violation even though I was never charged or convicted, or even arrested for anything other than 'probably cause' (Section A, Q5)

Secondly, I also have been working while I have been here with authorization. I previously was allowed to work, with conditions, when I was on my student visa, but on my most current entry I have no authorization. Basically it came to a point where I was really struggling and decided that I needed to take the risk and hope it was forgiven based on being the spouse of a USC. I know people who worked for cash off the record while they were waiting for EAD, but for me, my opportunity came to work for a company on the books. I had to register an LLC, which I did with my wife, and then receive checks written to the LLC that are deposited into the joint bank account in both our names that is for the business. This is how I eat and keep the lights on, and generally not become a public charge. My wife works, but it's unrealistic for her to support me until I got EAD, as well as the strain it would take on our relationship. In fact, it is how I  can afford to pay all the fees, as well as legal fees for this process. Again, I know this generally makes you inadmissible, but being a spouse of a USC, i decided to go for it. Rather have the money to make it happen then not and risk getting picked up. 
                   Do I need to list my employer here (again I do not intend to lie on current employment question) as the LLC or as the company that pays me/my LLC? Do i need to fill out the i-601/601a? 

In addition, given what I have detailed, do I need a i-485a? I am pretty confused about the i-485a and if I need it or not. In part 2 of the form, I don't seem to see where I would be eligible, unless I'm not reading it correctly. I do not seem to fit 1a,b,c,d,e, thus, I'm not sure if I need to fill it out or not. OR, do I simply skip all that and go to section 3 of part 2 and then fill out part 5 (immigration category) with 'family based'? 

If i do have to do a i-485a for part 3 'bars to entry' do I have to select, given my situation, 
1c: You are now employed or have ever been employed in the US without authorization? (OR DOES THIS GET AUTO WAIVED BASED ON SPOUSAL PRIVILEGE?)
1d: You are not in lawful immigration status on the date of filing your application for adjustment of status? (OR DOES THIS GET AUTO WAIVED BASED ON SPOUSAL PRIVILEGE?)
1e: You have failed to continuously maintain a lawful status since entry into the United States, unless your failure to maintain a status was through no fault of your own or for a technical reasons? (OR DOES THIS GET AUTO WAIVED BASED ON SPOUSAL PRIVILEGE?)
1j: You have ever violated the terms of your non immigration status? (OR... you guessed it..  DOES THIS GET AUTO WAIVED BASED ON SPOUSAL PRIVILEGE?)

I am thoroughly confused if I need to fill this form out at all, and if so, if I need to tick these boxes. 

To wrap up, this is what my application package looks like now: 
I-130 

-certified check

-cover letter

- form I-130 
-copy of all pages of wifes US passport
-my alien birth certificate and copy of passport
-a certified copy of our marriage cert. 
-two passport style photos of my wife

-two passport style photos of myself
-bonafide marriage evidence: lease, insurance, bank account, LLC registration, affidavits from friends and family
-form I-130A

I-485
- certified check

-cover letter

-form I-485

-copy of my passport

-electronic I-94 copy

-copy of my birth cert. 

-certified copy of marriage cert. 

-2 passport style photos of myself

-form I-693

-form I-864

-form I-765

 

DO I NEED TO ADD: I-485A AND I-601A??? 

Again to clarify, as detailed, my personal issues include an arrest without charges or conviction, overstaying my visa waiver, and working without authorization (though no payment appears in my name, I would prefer to be honest with USCIS, especially considering I have read so much about two of these issues getting wiped due to spousal privilege).


I know it's a lot, and I appreciate anyone who takes the time to respond. I feel pretty good about it, but obviously this is my life and our relationship, so I'm somewhat nervous, while she is extremely nervous. Life, as we know it, would end if I was denied and subsequently was banned for 10 years. 

If you need any additional information, just ask, or PM me, 

[bakphx1 789]

Mmm, that's a lot to digest.  I wouldn't file yet.  I am not familiar with anything called "spousal privelege."  Being married, by itself, invokes nothing except a basis for filing.  

 

The arrest by itself is probably a low hurdle, but it's more important to know the name of the charge rather than the back story.  The fact you weren't convicted helps a lot. 

 

Overstay:  there are waivers I think you can apply for, but again the back story doesn't mitigate anything.  A lawyer here is probably the best option. 

 

Unauthorized working:  same as above. 

 

Sorry I don't have good news, but filing now isn't a good idea.  I would talk to an attorney.  

[XOF FOX 0]

I mean ‘spousal privilege’ not as a matter of policy, but just as a way to describe the fact that you get away with certain things you otherwise wouldn’t if you were applying without being the spouse of a USC. For example, I wouldn’t even be able to file out of status if I wasn’t the spouse of a USC. I know a lot of the guides say you are likely forgiven of working without authorization or overstaying IF your application is done through marriage to a USC. Ya dig? I talk about the waivers above, so I just need someone who knows if they are applicable. 

 

As for the ‘charge’, like I clarified in the original post, I was never actually charged with anything, so there is no name of the charge as I never received one. 

 

I have a lawyer I’m meeting with this week, but I just wanted to bounce it off some minds here. 

 

When you say, you wouldn’t file ‘now’, what do you mean? The facts aren’t going to change. 

Edited November 6, 2017 by XOF FOX

[bakphx1 789]

By not filing for now, I mean find out if waivers need to be done first or concurrently with the application.  The main concern is you can't unring that bell... once you've filed you are forever in the system "as is" and if waivers need to be done at the time of filing or beforehand, you may be in a spot you can't get out of. 

 

By charge, I mean what they arrested you for.  Whether it's suspicion of possession or something like that, think of what it will be called when they get your police record.  It will have a concise name. 

 

The privilege of filing for a visa has a legal basis.  There isn't automatic forgiveness for the other things based on marriage as no law or policy speaks to it.  Too many TV shows and movies give that impression, but it's fiction. Think of passing through CBP or applying for a job with only your marriage certificate in hand as your authorization and nothing else.  Same idea applies here. 

[XOF FOX 0]

I hear you man, and of course I’m not going to file without working it out first, which is why in my post I’m specifically asking those questions. 

 

I wouldnt know what tv or movies say as I have only got my information from these forums and legal websites like NOLO etc. Many of those websites state you get the ability for forgiveness that many other applicants do not. Please don’t misunderstand me, I’m not insinuating it’s automatic, I’m Just saying it’s available where otherwise it would not be for a non family member. 

 

like in my oroginal post, the ‘charge’, for lack of a better word, was ‘probably cause: narcotics’. Literally that’s what it was called. 

[bakphx1 789]

I don't know a lot about the 601A, but I always thought that is when you need an attorney.

 

Once you file, you lose control of some things so it's better to wait and know what can be done to remove barriers before hand. It's a very opaque process once it starts, so you want to give them every thing to mitigate those things up front as much as you can. 

 

You'll just list the charge and I believe you get to explain.  But the attorney can probably give best wording.  Arrested for questioning  but not charged will be a help. I know you will want to say just enough to address it, but volunteering more can have unintended consequences. 

 

 

[Hypnos 6,576]

There are certain criminal matters for which no conviction is required for you to become inadmissible to the US. Drug trafficking is one of them, though it would be quite the stretch to turn what happened, at least as you described it, into "drug trafficking". So yes, answer Yes to being arrested and provide a letter from the arresting agency indicating that no charges were filed as a result of that. I doubt it will be an issue, though you should consult an experienced immigration attorney before you file anything to double check that this is actually the case.

 

An I-485A is not applicable in your case.

 

Your unauthorised employment should also not prevent you from having your application approved, but you should put your employer on the form where it asks, because not doing so would be perjury (as the form warns you, at the end).

 

 

[EvieMN 105]

Being out of status really isn't your biggest issue. If you read more here on VJ you'll see so many cases in which people have been in the US illegally for years. The arrest also shouldn't harm you too much if you can get a letter stating what happened and you can prove you weren't charged with anything.

I'm not so sure about the unauthorized work though. Again, I'm sure you're not the first one to do it, but then a lot of people work "under the table" therefore never file taxes and never disclose that they worked.

You're definitely better off talking to a lawyer which I saw you're already in the proccess of so I can only wish you good luck with your AOS!

I'm sorry I couldn't really be of help here.

Please update us as your story goes on

[Suss&Camm 2,213]

That was a very long post - If I understand correctly the short version is, you were once arrested but never charged or convicted of anything. This is not a problem, but needs to be disclosed of course.

 

Overstay and unauthorized work are both looked the other way for during AOS for spouses of USC's. As with the arrest it needs to be disclosed of course.

[XOF FOX 0]

Thanks for the responses all. 

I have a meeting with my lawyer this week. Pretty much you guys are bouncing off me what I'm thinking in my mind from what I have read, in regards to all three issues, which makes me feel a lot better. The arrest thing was exactly how I described it, I would have never step foot in a jail if I had a US ID, or agreed to be questioned without a lawyer, I just was trying to protect myself seeing I am not a legal expert. I will keep you updated. 

[Villanelle 4,122]

Wow that was a long read! 

Suss&Cam answered you. The attny is not going to tell you anything different- so I hope its a free consult. On a personal note - stop making so many excuses. I mean I get you want to explain what happened, but the most important thing is to "own it". Im just imagining being the Officer interviewing you lol. They arent going to let you babble on like that, and if they do it would only be to let you put your foot in your mouth unintentionally. So next time you explain the story- start with saying what you did and you know youre guilty but blah blah this is how it happened. 

[XOF FOX 0]

Yeah I appreciate everyone's responses. 

 

I don't intend to 'babble on' like that in the interview, so that's why I do it here to quell my nerves and acquire some advice on how to handle which forms to fill out. That's my major concern, having the correct forms. 

I don't intend to tell them why I worked, just that I did. I don't intend to tell them the specifics of my arrest, unless they ask, just simply provide the information that I actually have no charges or anything. I don't intend to tell them why I went out of status, just that I did. 

If anyone actually reads the entirety of my original post, I explain I have held multiple visas etc before, so I am not a newbie to how the interviews generally go. I realize I wont be in there for an hour explaining all of this. I am just trying to fill in ALL details so people can provide me with adequate responses.

Again, I appreciate all responses, i do not intend to try to hide anything, I just wanted to know exactly which supplemental forms I need to fill out, if any. 

[XOF FOX 0]

3 hours ago, Damara said:

Wow that was a long read! 

Suss&Cam answered you. The attny is not going to tell you anything different- so I hope its a free consult. On a personal note - stop making so many excuses. I mean I get you want to explain what happened, but the most important thing is to "own it". Im just imagining being the Officer interviewing you lol. They arent going to let you babble on like that, and if they do it would only be to let you put your foot in your mouth unintentionally. So next time you explain the story- start with saying what you did and you know youre guilty but blah blah this is how it happened. 

what excuses are you referring to? I think I owned everything I have said might be an issue. I never said I intended to hide any of them, just simply asked which forms I needed to take into consideration in regards to them. Not all situations are alike, so that's why I provide details. 

I know they are going to want honesty above all, so that's what I intend to provide. 

[XOF FOX 0]

10 hours ago, EvieMN said:

Being out of status really isn't your biggest issue. If you read more here on VJ you'll see so many cases in which people have been in the US illegally for years. The arrest also shouldn't harm you too much if you can get a letter stating what happened and you can prove you weren't charged with anything.

I'm not so sure about the unauthorized work though. Again, I'm sure you're not the first one to do it, but then a lot of people work "under the table" therefore never file taxes and never disclose that they worked.

You're definitely better off talking to a lawyer which I saw you're already in the proccess of so I can only wish you good luck with your AOS!

I'm sorry I couldn't really be of help here.

Please update us as your story goes on

Thanks brother. Will update as I go along.

I actually have not worked under the table. It's all above board out in the open. I even used my Social Security number i was given when I had work authorization during my student status. I even paid taxes as I should. I figured if I was going to do it, I might as well be open about it. 

Good luck to you too.