On-campus employment seen as a violation?

[Justin N 0]

Hello all,

 

I am a PR sponsoring my wife who came to the US as an F1. She has entered legally and been in status as an F1 so far. Her category is F2A and she is about to file an AOS. 

 

She graduated from a college in May 2016, then transferred to another school and began her first semester in August 2016. However, she continued working on-campus of the old school over the summer until August 2016. Recently, I learned that an F-1 student must stop working on-campus after graduation (or after her SEVIS record was transferred).

She said she was not aware of this at the time because she thought she could still work at the old school until she started the new school. I think that was an honest thought because she left that job in August when she started the new school.

 

Since then, she's had one on-campus job and several CPT jobs. They were all 100% authorized and she worked within authorized periods. She has filed taxes every year and never been out of status.

 

I won’t become a USC anytime soon, so I know if this is seen as violation, it won't be forgivable.

 

Working on-campus over the summer is normal, but it can be unclear when you're transitioning to the another school. What do you guys think about this event?

Should we still go ahead and file an AOS and what is your advice? In case it was denied, could she leave the US and apply for the consulate processing?

 

Thanks for reading, everyone!

[wagecuck3 31]

The federal regulations do say that, in case of a SEVIS transfer, on-campus employment is only allowed at the institution that currently has jurisdiction over the SEVIS record, so your wife did violate her F-1 status back in 2016. In addition, if your wife ever failed to disclose this violation where it was required on any subsequent immigration paperwork, she may be on the hook for misrepresentation. Because of this, I think you should consult a lawyer, who can look over all the paperwork and formulate a strategy to proceed.

[Justin N 0]

On 8/10/2020 at 5:09 PM, wagecuck3 said:

The federal regulations do say that, in case of a SEVIS transfer, on-campus employment is only allowed at the institution that currently has jurisdiction over the SEVIS record, so your wife did violate her F-1 status back in 2016. In addition, if your wife ever failed to disclose this violation where it was required on any subsequent immigration paperwork, she may be on the hook for misrepresentation. Because of this, I think you should consult a lawyer, who can look over all the paperwork and formulate a strategy to proceed.

If we choose to proceed with an AOS and she will maintain her F-1 status, can she fall back into her F-1 status in case her AOS was denied? 

 

My second question is when an applicant is denied AOS (no ban triggered nor unlawful presence), can she then go back to her home country and apply through consular processing? Thanks in advance!

[geowrian 22,335]

Just now, Justin N said:

If we choose to proceed with an AOS and she will maintain her F-1 status, can she fall back into her F-1 status in case her AOS was denied? 

 

My second question is when an applicant is denied AOS (no ban triggered nor unlawful presence), can she then go back to her home country and apply through consular processing? Thanks in advance!

Filing for AOS does not grant or remove any status. It grans a period of authorized stay while the case is spending. if one maintains their status as well, a denied AOS case would only terminate that period of authorized stay.

 

That said, the reason for denial may impact their current status as well.

For instance, if AOS was denied due to not maintaining lawful status, presumably their status would also be terminated because they violated the terms of their status already.

 

As long as she does not accrue 180+ of unlawful presence, and is not inadmissible for another reason, she could complete consular processing abroad. Unlawful employment would not be a basis to deny the visa.

[wagecuck3 31]

On 8/12/2020 at 11:56 PM, Justin N said:

If we choose to proceed with an AOS and she will maintain her F-1 status, can she fall back into her F-1 status in case her AOS was denied? 

 

My second question is when an applicant is denied AOS (no ban triggered nor unlawful presence), can she then go back to her home country and apply through consular processing? Thanks in advance!

It depends on the details of your case. Like I said before, here is one particular hypothetical situation: if your wife, at any point AFTER her unauthorized employment occurred, had renewed her visa stamp or applied for any other kind of US visa, and the form asked if she had ever worked without authorization and she at that point had failed to disclose the unauthorized employment, then she could be found to have engaged in misrepresentation in which case she would be permanently banned from the US. In that situation it wouldn't matter if she went for AOS or consular processing - both would be denied.

 

I would strongly urge anyone with any immigration violation on their record to consult a lawyer so you can show them ALL your paperwork and they can tell you how to proceed with your case (unless it's a simple overstay, in an Immediate Relative case).