AOS for dependent spouse who did unauthorized work

new_member0999

New Member
I am on H1B visa married to a person on F1 visa. Recently I found out that my husband has been working for an year on his F1 visa outside of the campus illegally and getting paid under the table in cash. He says that he has never used his SSN for his employment neither has he collected any checks. He got paid in cash which he mostly submitted to his bank account or spent in cash.



Very soon my company will be filing for my green card application on basis of high skilled worker and my husband will be my dependent on the application for the green card. I want to know the following:



1. How severe is this offense? Is this a criminal offense? He says that since he was paid in cash there is no paper trail of it.

2. Will his illegal employment which was paid in cash affect me/my status or green card application in any way?

3. Do I need to submit my bank statement with my green card application? Will the dependent too?

4. Is there any way this can be tied to him?

5. If it gets linked to him will I be responsible for any of this given he will be dependent on my green card application?



I am really stressed over this as I feel betrayed by my husband that he didn’t tell me this before getting married. Please help me if you know the answers.



Regards.
 
It definitely doesn't affect you, but it affects his AOS. It's not "whether it can be tied to him" -- he will be asked about whether he had unauthorized employment and about his employment history on his AOS application and he must honestly answer all questions or it would be immigration fraud. Since it's an employment-based category, he can AOS as long as he has less than 180 days of being out of status or unauthorized employment since the most recent entry. A year is too much, and it will make him ineligible for AOS (unless he has left the US and re-entered since then). If he can leave the US and manage to re-enter, it would make him eligible for AOS again; alternately he can do Consular Processing abroad and follow to join you after you get your green card.
 
First thing he needs to do is to amend his taxes for the year(s) he worked illegally to declare unreported earnings and pay back taxes on those earnings.
And if he really wants to this right, he should report the employer who was equally complicit in hiring and paying illegal wages.
 
It definitely doesn't affect you, but it affects his AOS. It's not "whether it can be tied to him" -- he will be asked about whether he had unauthorized employment and about his employment history on his AOS application and he must honestly answer all questions or it would be immigration fraud. Since it's an employment-based category, he can AOS as long as he has less than 180 days of being out of status or unauthorized employment since the most recent entry. A year is too much, and it will make him ineligible for AOS (unless he has left the US and re-entered since then). If he can leave the US and manage to re-enter, it would make him eligible for AOS again; alternately he can do Consular Processing abroad and follow to join you after you get your green card.

Thanks for your reply. I looked into I245K and since I fall under EB2 category I might be able to use. Now the issue here is that I245 says “last lawful entry”.
He entered last time to US on J1 and got his F1 through change of status while being in US and his F1 started from beginning of this year and he was working since then. So I think he has more than 180 days of violation from his last lawful entry.

Now we haven’t changed his status to H4 yet. We were planning to change of status. Now how we will be able to do a lawful entry? The change of status form asks “if you have maintained your status which you are currently on” saying yes here be considered as misrepresentation of fact. Also if leaves the country he will either have to go for visa stamping for F1 or H4 which needs filing DS160 and that form also have the same question.
Is there anyway he can re-enter lawfully so that we can use I245k? We are going to file taxes on all his incomes. I have given a lot of thought on separation but I really want us to be able to stay together specially since we are starting a family soon.

Thanks.
 
It definitely doesn't affect you, but it affects his AOS. It's not "whether it can be tied to him" -- he will be asked about whether he had unauthorized employment and about his employment history on his AOS application and he must honestly answer all questions or it would be immigration fraud. Since it's an employment-based category, he can AOS as long as he has less than 180 days of being out of status or unauthorized employment since the most recent entry. A year is too much, and it will make him ineligible for AOS (unless he has left the US and re-entered since then). If he can leave the US and manage to re-enter, it would make him eligible for AOS again; alternately he can do Consular Processing abroad and follow to join you after you get your green card.
Also can you share a little more detail on consular processing approach which your suggested?
Since I am from China (long wait for green card) and he is from country which has current status we were planning to use his country through cross-chargeability.
 
Thanks for your reply. I looked into I245K and since I fall under EB2 category I might be able to use. Now the issue here is that I245 says “last lawful entry”.
He entered last time to US on J1 and got his F1 through change of status while being in US and his F1 started from beginning of this year and he was working since then. So I think he has more than 180 days of violation from his last lawful entry.

Now we haven’t changed his status to H4 yet. We were planning to change of status. Now how we will be able to do a lawful entry? The change of status form asks “if you have maintained your status which you are currently on” saying yes here be considered as misrepresentation of fact. Also if leaves the country he will either have to go for visa stamping for F1 or H4 which needs filing DS160 and that form also have the same question.
Is there anyway he can re-enter lawfully so that we can use I245k? We are going to file taxes on all his incomes. I have given a lot of thought on separation but I really want us to be able to stay together specially since we are starting a family soon.

Thanks.
Well he would honestly answer yes on the visa application form about any previous violations of status, and see if he gets a visa. There's nothing technically that prohibits him from getting a visa if he has past violations of status or unauthorized employment, though the officer may deny an F1 visa for immigrant intent; for H4 immigrant intent isn't an issue so it may be easier. Is his current F1 visa already expired?
 
Also can you share a little more detail on consular processing approach which your suggested?
Since I am from China (long wait for green card) and he is from country which has current status we were planning to use his country through cross-chargeability.
Hmm, using him for cross-chargeability I believe requires him to AOS too, so then he would probably need to get a new entry to qualify for AOS, rather than do Consular Processing.
 
Well he would honestly answer yes on the visa application form about any previous violations of status, and see if he gets a visa. There's nothing technically that prohibits him from getting a visa if he has past violations of status or unauthorized employment, though the officer may deny an F1 visa for immigrant intent; for H4 immigrant intent isn't an issue so it may be easier. Is his current F1 visa already expired?

In your reply you said there is nothing technically that prohibits him from getting the visa if he has past violations. I thought that it’s impossible to get one. Can you share more details or resources where I can read about it. How will F1 show immigration intent in this case? Although we will be doing H4 itself so that should be fine. Do you think we will have trouble getting H4 if we tell the truth. I know it’s not something you can answer for certain but your opinion willl help.
No the current visa is not expired and he has never miss school or credits. His has been out of status due to unauthorized work but his presence is legal.
Also should we do change of status here or get h4 stamped in his home country? Which one will be safer if we will tell the truth?
Thanks.
 
Hmm, using him for cross-chargeability I believe requires him to AOS too, so then he would probably need to get a new entry to qualify for AOS, rather than do Consular Processing.
So in this case new entry can only be done by getting the visa stamped either h4 or f1 and by telling the truth about previous violation correct?
Thanks.
 
Well he would honestly answer yes on the visa application form about any previous violations of status, and see if he gets a visa. There's nothing technically that prohibits him from getting a visa if he has past violations of status or unauthorized employment, though the officer may deny an F1 visa for immigrant intent; for H4 immigrant intent isn't an issue so it may be easier. Is his current F1 visa already expired?

So in this case new entry can only be done by getting the visa stamped either h4 or f1 and by telling the truth about previous violation correct?
Thanks.

This happened to a friend of mine who violated her H4 status (albeit unknowingly, not realizing the ban on work extended to working for companies outside the US while resident here on H4; they had declared her income on their tax return so no issues with respect to that). Took a quick trip to Mexico, came back in to get a new stamp, made some sort of declaration/plea about the violation, and now has a green card. This process was done under the guidance of their lawyer, though I don’t know how necessary that is - possibly more so in a case where the person clearly knowingly violated both the visa conditions and tax laws.
 
This happened to a friend of mine who violated her H4 status (albeit unknowingly, not realizing the ban on work extended to working for companies outside the US while resident here on H4; they had declared her income on their tax return so no issues with respect to that). Took a quick trip to Mexico, came back in to get a new stamp, made some sort of declaration/plea about the violation, and now has a green card. This process was done under the guidance of their lawyer, though I don’t know how necessary that is - possibly more so in a case where the person clearly knowingly violated both the visa conditions and tax laws.
Hello,
He says he also didn’t know that he is not allowed to the worked outside of campus. Since we did a change of status while residing inside the US he didn’t read all the conditions and stuff. Although I wonder how true that is I can believe to some extent that change of status might not have revealed all the conditions. But the school must have mentioned it during international orientation (he says he might not have been attentive or it wasn’t mentioned). He is planning to file taxes for the earning in the tax submission which is coming up.

So the friend of yours already had H4 visa stamp or they got a new one in Mexico and did they mentioned about the unauthorized work on the ds160? Also was Mexico their home country?
 
Hello,
He says he also didn’t know that he is not allowed to the worked outside of campus. Since we did a change of status while residing inside the US he didn’t read all the conditions and stuff. Although I wonder how true that is I can believe to some extent that change of status might not have revealed all the conditions. But the school must have mentioned it during international orientation (he says he might not have been attentive or it wasn’t mentioned). He is planning to file taxes for the earning in the tax submission which is coming up.

So the friend of yours already had H4 visa stamp or they got a new one in Mexico and did they mentioned about the unauthorized work on the ds160? Also was Mexico their home country?

Hm, I believe everyone who gets a F1 visa should know what the conditions about off-campus work are. I think pleading ignorance would be taken very sceptically including the under the counter payments and not declaring tax. By contrast there is a lot of confusion about exactly what work is and isn’t allowed under H4. In any case ignorance is not an excuse, my friend was ignorant but that didn’t change the fact that she violated the conditions of the visa.

No, my friend is not Mexican, simply went somewhere close by to be able to re-enter to get a new “clean” entry stamp. She had been on H4 all along. I don’t believe there was any new DS160 filled in at that stage but I don’t know all the details. Just that it seemed a bit too easy to me that it was as simple as leaving, coming back and getting forgiveness, but it worked out exactly like that. I can’t say if every case is the same and as I said she did it all under lawyer guidance (the lawyer worked for the employer who was sponsoring their green cards).
 
In your reply you said there is nothing technically that prohibits him from getting the visa if he has past violations. I thought that it’s impossible to get one. Can you share more details or resources where I can read about it. How will F1 show immigration intent in this case? Although we will be doing H4 itself so that should be fine. Do you think we will have trouble getting H4 if we tell the truth. I know it’s not something you can answer for certain but your opinion willl help.
No the current visa is not expired and he has never miss school or credits. His has been out of status due to unauthorized work but his presence is legal.
Also should we do change of status here or get h4 stamped in his home country? Which one will be safer if we will tell the truth?
Thanks.

@newacct : Can you please provide some input here? I will appreciate your reply on chances of getting H4 if answered "yes" on 160.
 
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