Will my ex-wife be working illegally following our marriage petition withdrawal? (merged)

[OllieJ 12]

Last year my wife and I got married prior to completing our master's degrees (she chose to forgo OPT for the EAD card). She received an expedited EAD card and began working several months ago at a large company, however, this company does not commonly sponsor foreign employees. In the past several months, my wife has said she no longer wants to remain together, wants to put her career first, and solely focus on her ambitions among other reasons. We plan on withdrawing the marriage petition and signing the divorce papers shortly. Currently, we have not yet had our USCIS interview as it's been about 10-11 months since we first submitted the marriage petition.

She has said that she plans on continuing to work at this company until she can get a H1-B visa in a few months. She's said that the EAD card will remain and she's authorized to continue to work despite withdrawing the marriage petition and signing the divorce papers.

Is this realistic? I have read that the EAD is linked to the marriage petition - so I'm unsure what will happen when we do withdraw it.

Is her plan even feasible? Can she still receive OPT? Isn't relying on the H1-B visa risky as its a lottery system?

Edited July 16, 2019 by OllieJ

[Dashinka 23,291]

10 minutes ago, OllieJ said:

Last year my wife and I got married prior to completing our master's degrees (she chose to forgo OPT for the EAD card). She received an expedited EAD card and began working several months ago at a large company, however, this company does not commonly sponsor foreign employees. In the past several months, my wife has said she no longer wants to remain together, wants to put her career first, and solely focus on her ambitions among other reasons. We plan on withdrawing the marriage petition and signing the divorce papers shortly. Currently, we have not yet had our USCIS interview as it's been about 10-11 months since we first submitted the marriage petition.

She has said that she plans on continuing to work at this company until she can get a H1-B visa in a few months. She's said that the EAD card will remain and she's authorized to continue to work despite withdrawing the marriage petition and signing the divorce papers.

Is this realistic? I have read that the EAD is linked to the marriage petition - so I'm unsure what will happen when we do withdraw it.

Is her plan even feasible? Can she still receive OPT? Isn't relying on the H1-B visa risky as its a lottery system?

First of all, sorry to hear about the relationship ending.  To my knowledge, if the EAD was granted based on the I130/I485 filing, then the withdrawal of those should end the validity.  As to your wife working illegally, that is really her deal and that of the company, but if I were you, I would formally withdraw the I864 from the application to make sure you are not on the hook legally.  Your soon to be ex can pursue the employment based visa with her company.

 

Good Luck!

[Boiler 43,576]

First and most important is that whatever problems there are, are hers not yours.

 

I am intrigued as to how she can get a H1b but she in not posting on this thread.

[Crazy Cat 39,363]

I wouldn't worry too much about it......I think she is going to receive a lot of scrutiny in any attempt to continue.  In my opinion, you should withdraw the petition and/or any affidavit of support you have submitted.  Otherwise, you are financially responsible for her for many years...Financial obligations do not cease with a divorce......then, I would divorce, let it go, and seek happiness for myself.......just my opinion.

 

But I think the EAD (and her authorization to work) dies with the petition (I-485) at this point....

Edited July 16, 2019 by missileman

[Rosalind F 178]

I think since she got EAD through OPT there should be no problem for her; and the company will help her down the road.

Marriage is not the only way to get to stay in US. 

[Boiler 43,576]

1 minute ago, Rosalind F said:

I think since she got EAD through OPT there should be no problem for her; and the company will help her down the road.

Marriage is not the only way to get to stay in US. 

OP said otherwise.

[Rosalind F 178]

1 minute ago, Boiler said:

OP said otherwise.

You are right, I totally misread the post! Not enough coffee this morning yet  

 

Then yeah, since I-130 is withdrawn the EAD is not valid any more but I don't think the company will be notified. 

[Crazy Cat 39,363]

 

1 hour ago, Rosalind F said:

You are right, I totally misread the post! Not enough coffee this morning yet  

 

Then yeah, since I-130 is withdrawn the EAD is not valid any more but I don't think the company will be notified. 

She should notify them.....but I'm sure that won't happen....

[Ironclad43 131]

EAD will not be valid anymore and there's no way for the company to know that. They also cannot sponsor someone for a work visa who is already in the United States and working for them. She should have waited. Oh well.

[Dashinka 23,291]

2 minutes ago, missileman said:

 

She should notify them.....but I'm sure that won't happen....

Agreed, she should notify the company.  A reputable company though, that has hired a person who is using an EAD, should be following the progress of said employee in my opinion.

2 minutes ago, Ironclad43 said:

EAD will not be valid anymore and there's no way for the company to know that. They also cannot sponsor someone for a work visa who is already in the United States and working for them. She should have waited. Oh well.

As @Boiler mentioned, her problem.

[Boiler 43,576]

I am not sure how an Employer could follow the progress, she showed a valid EAD with an expiry date, nothing for them to check until its expiry date.

 

She would be working illegally, but that is her issue, the Employer will have a sufficient paper trail to protect them.

[arken 4,197]

25 minutes ago, Ironclad43 said:

EAD will not be valid anymore and there's no way for the company to know that.

Agreed. Companies go by the expiry of EAD and not by what happens before that.

 

 

Quote

 

They also cannot sponsor someone for a work visa who is already in the United States and working for them. She should have waited. Oh well.

Actually they can sponsor, not for a work visa but for work like COS to H1B. Whether the person want to get work visa later on or not is a separate issue. However, her out of status after marriage petition withdrawal will cause trouble in changing status to H1B even if lottery selected. In fact she may even get NTA after the petition is withdrawn.

Edited July 16, 2019 by arken

[Dashinka 23,291]

19 minutes ago, Boiler said:

I am not sure how an Employer could follow the progress, she showed a valid EAD with an expiry date, nothing for them to check until its expiry date.

 

She would be working illegally, but that is her issue, the Employer will have a sufficient paper trail to protect them.

So what happens if the employer does not do a check when the expiration date comes around?  I agree, they would be covered until that date even if the EAD was canceled prior to that, but when the 1 year date comes around they should be inquiring of her to update her legal employment status.

[arken 4,197]

Any non-shady employer would keep track of such things and ask the employee to present a new work authorization document to be able to continue working.

 

If they don’t do such checks and keep the employee working with them, they may not get into problem unless someone complains to DOL. Not all undocumented people are working in cash, i bet a lot are working with paystubs.

Edited July 16, 2019 by arken

[JeanneAdil 6,220]

1 hour ago, Bill & Katya said:

So what happens if the employer does not do a check when the expiration date comes around?  I agree, they would be covered until that date even if the EAD was canceled prior to that, but when the 1 year date comes around they should be inquiring of her to update her legal employment status.

maybe the expiration date will go unchecked but problems will arise when the employer pays into Federal tax withholding and SS and medicare

IRS catches everything /sooner or later

 

and he said her company usually does not sponsor foreign employees probably as the attorney fees for this are high

 

i would say this woman is SOL

Edited July 16, 2019 by JeanneAdil