AOS of F-1 student working illegally

[sapyns]

Hi,
Here is the scenario:
A F-1 student, who is a spouse of a permanent resident, is filing I-485 based upon the approval of I-130. The student worked using his social security (not using EAD though he had EAD) during the OPT (Optical Practical Training) period. This basically means the work was not related to his field of study which EAD requires. The (illegal) work history was mentioned in G-325A while filing I-130 and I-130 was approved.
Now my question is:
What are the consequences of working on social during the OPT period while filing I-485? Is there any good suggestion regarding this issue?
Thanks for your advice.

 

[Jackolantern]

Is the student filing I-485 as a derivative beneficiary to his/her spouse's employment-based green card, or is it family-based?

Unauthorized employment of less than 180 days is normally forgiven for employment-based applicants in EB1/EB2/EB3, but family-based applicants don't get that benefit unless they're immediate relatives of a US citizen (spouse, parent, or under-21 child).

So if this student doesn't qualify for that relief, the I-485 will be denied and they should withdraw it (if already filed) and wait until his/her spouse becomes a US citizen, and also should not leave the US until the green card is in his/her hand.

 

[sapyns]

Thank you Jackolantern for your reply. The student is filing I-485 in a family-based category as a spouse of a permanent resident.

As I mentioned earlier, the unauthorized employment was during the OPT period, three years back, when the student had EAD in hand and had maintained F-1 status during that period. The student joined a college after the end of OPT. He has been maintaining F-1 status since then. He had also been outside the United States for almost two months, a year after OPT expired and re-entered the US without any hassle. My question is:

Will the work done during the OPT (without using EAD card) considered as unauthorized employment?
Will I-485 still be denied based on these scenarios?
Thank you

 

[newacct]

Thank you Jackolantern for your reply. The student is filing I-485 in a family-based category as a spouse of a permanent resident.

As I mentioned earlier, the unauthorized employment was during the OPT period, three years back, when the student had EAD in hand and had maintained F-1 status during that period. The student joined a college after the end of OPT. He has been maintaining F-1 status since then. He had also been outside the United States for almost two months, a year after OPT expired and re-entered the US without any hassle. My question is:

Will the work done during the OPT (without using EAD card) considered as unauthorized employment?
Will I-485 still be denied based on these scenarios?
Thank you

I'm not sure what would actually happen. However, theoretically, yes, it's unauthorized employment because it's out of her major. Furthermore, unauthorized employment violates the conditions of the F1 status, so she would technically also have been out of status since she started that unauthorized employment, which may affect the AOS also.

Is the spouse who's a permanent resident going to become a U.S. citizen soon? If so, it might be more advisable to just wait until that and file as the spouse of a U.S. citizen.

 

[Jackolantern]

Thank you Jackolantern for your reply. The student is filing I-485 in a family-based category as a spouse of a permanent resident.

As I mentioned earlier, the unauthorized employment was during the OPT period, three years back, when the student had EAD in hand and had maintained F-1 status during that period. The student joined a college after the end of OPT. He has been maintaining F-1 status since then. He had also been outside the United States for almost two months, a year after OPT expired and re-entered the US without any hassle.

How long was the unauthorized employment? How did he reenter the US after OPT expiration? A brand new F1 visa?

 

[sapyns]

newacct and Jackolantern, Thanks a lot for your quick responses.
Let me make the situation more clear:
The student had F-1 visa valid for 5 years when he entered US. His EAD was approved under OPT at the beginning of third year. He worked for almost seven months during OPT outside his major. The OPT expired at the end of third year and the student joined another University to maintain F-1 status. He traveled outside US during the fifth year of his visa. So, the student had a valid F-1 visa while he re-entered the US.

If the unauthorized employment violated F-1 status and the student was technically out of status, why was he allowed to re-enter the US? OR, USCIS doesn't care where students work during OPT, though they theoretically say students should work related to their major? Is USCIS strict on this?

The permanent resident has her naturalization interview at the end of August. It might take another month for taking the oath. So, the student is planning to apply for AOS at this time. Things got complicated and scary after your thoughts, but we really appreciate your responses as we don't want to mess up with our application in the very last minute.

We also wonder about the approval of I-130, where employment during the OPT was mentioned. Don't USCIS look into the employment history before they approve I-130?

Thank you again, to both of you, for your time and suggestions.

 

[Jackolantern]

newacct and Jackolantern, Thanks a lot for your quick responses.
Let me make the situation more clear:
The student had F-1 visa valid for 5 years when he entered US. His EAD was approved under OPT at the beginning of third year. He worked for almost seven months during OPT outside his major. The OPT expired at the end of third year and the student joined another University to maintain F-1 status. He traveled outside US during the fifth year of his visa. So, the student had a valid F-1 visa while he re-entered the US.

So he used the same old visa to reenter the US after the unauthorized employment? That's not good. Violating the F1 status technically invalidated the visa (although it may have remained valid in the USCIS system because they were unaware of the unauthorized employment) and it shouldn't have been used again.

If the unauthorized employment violated F-1 status and the student was technically out of status, why was he allowed to re-enter the US? OR, USCIS doesn't care where students work during OPT, though they theoretically say students should work related to their major? Is USCIS strict on this?

The officer at the port of entry probably wasn't aware of the unauthorized employment. At the port of entry they don't have time to do the level of deep scrutiny like what would happen in the green card process.

The permanent resident has her naturalization interview at the end of August. It might take another month for taking the oath. So, the student is planning to apply for AOS at this time.

With his history, applying for AOS with naturalization so close would be very stupid. He should wait it out and apply after naturalization.

We also wonder about the approval of I-130, where employment during the OPT was mentioned. Don't USCIS look into the employment history before they approve I-130?

No. I-130 is approved or denied based on evidence of the family relationship, without regard to the eligibility to adjust status (or lack thereof).

 

[newacct]

Yes, he should wait until the spouse naturalizes. As the spouse of a U.S. citizen, unauthorized employment and being out of status don't matter for AOS.

 

[sapyns]

Thank you for your suggestions and thought. We decided to file I-485 after the spouse gets naturalized. The good news is: Spouse's oath ceremony has been scheduled. Can you please shed some light on some of my concerns:
1. In order to file as a spouse of a US citizen, Can the adjustment of status (I-485) be filed a day after spouse's oath ceremony? or is there any wait time before filing can be done, after being citizen?
2. Can the naturalization certificate be sent as a proof of spouse's citizenship? or a US passport is needed?
3. Spouse changed her name during the naturalization process. What documents should be sent to relate already approved I-130?
4. Spouse's new name should be printed in all the forms including I-485, G-325A, I-864. Right?
5. Does the spouse file I-864 for sponsorship after being a citizen? or some other forms?
6. Are there any specific changes in the documents for filing AOS for spouse of a US citizen compared to that of LPR?
7. Just want to make sure again, can the student leave US on Advance Parole while I-485 case is still pending?
Thank you again for your help.

 

[newacct]

Thank you for your suggestions and thought. We decided to file I-485 after the spouse gets naturalized. The good news is: Spouse's oath ceremony has been scheduled. Can you please shed some light on some of my concerns:
1. In order to file as a spouse of a US citizen, Can the adjustment of status (I-485) be filed a day after spouse's oath ceremony? or is there any wait time before filing can be done, after being citizen?
2. Can the naturalization certificate be sent as a proof of spouse's citizenship? or a US passport is needed?
3. Spouse changed her name during the naturalization process. What documents should be sent to relate already approved I-130?
4. Spouse's new name should be printed in all the forms including I-485, G-325A, I-864. Right?
5. Does the spouse file I-864 for sponsorship after being a citizen? or some other forms?
6. Are there any specific changes in the documents for filing AOS for spouse of a US citizen compared to that of LPR?
7. Just want to make sure again, can the student leave US on Advance Parole while I-485 case is still pending?
Thank you again for your help.

1. Yes. However, I don't know whether the I-130 needs to be "upgraded" for you to use it and also count as an immediate relative.
2. Yes
3. Isn't there some kind of document documenting the name change?
4. Yes
5. Yes, the petitioner always needs to be a sponsor.
6. No. The I-130 would be different; but that is already approved; so I don't know.
7. Yes, once they get Advance Parole (which will take up to 3 months to get after applying)

 

[sapyns]

1. Yes. However, I don't know whether the I-130 needs to be "upgraded" for you to use it and also count as an immediate relative.
2. Yes
3. Isn't there some kind of document documenting the name change?
4. Yes
5. Yes, the petitioner always needs to be a sponsor.
6. No. The I-130 would be different; but that is already approved; so I don't know.
7. Yes, once they get Advance Parole (which will take up to 3 months to get after applying)

Thank you so much newacct. We expect to get name change document during the oath ceremony.
I am a bit confused with the ways things are going. As I mentioned earlier, my I-130 was filed and approved before spouse became a citizen.
1. Am I (student) filing AOS as a) an immediate relative of a US citizen or b) as a spouse of permanent resident under F2A category? (This is an important concern I need to address. Should I even worry about the priority date, though PD is current at the moment for all F2A. I don't want to file I-130 again after spouse's oath ceremony).
2. If unauthorized employment raise questions to student status, can he travel with Advance Parole?

Thank you in advance.

 

[Jackolantern]

1. Am I (student) filing AOS as a) an immediate relative of a US citizen or b) as a spouse of permanent resident under F2A category? (This is an important concern I need to address. Should I even worry about the priority date, though PD is current at the moment for all F2A. I don't want to file I-130 again after spouse's oath ceremony).

If you file for AOS after your spouse becomes a US citizen, you'd be classified as an immediate relative of a US citizen. Include a copy of your spouse's naturalization certificate, and a cover letter pointing out that your spouse became a US citizen after the I-130 was approved, and they will upgrade the I-130 accordingly.

2. If unauthorized employment raise questions to student status, can he travel with Advance Parole?

It would be risky to travel abroad before you get the green card. There was a court ruling that would appear to reduce the risk of traveling with AP for people with a history of unlawful or questionable presence, but it's not yet widely agreed across the appeal courts or looked at by the Supreme Court, so don't take that chance if you don't have to.

 

[sapyns]

If you file for AOS after your spouse becomes a US citizen, you'd be classified as an immediate relative of a US citizen. Include a copy of your spouse's naturalization certificate, and a cover letter pointing out that your spouse became a US citizen after the I-130 was approved, and they will upgrade the I-130 accordingly.


It would be risky to travel abroad before you get the green card. There was a court ruling that would appear to reduce the risk of traveling with AP for people with a history of unlawful or questionable presence, but it's not yet widely agreed across the appeal courts or looked at by the Supreme Court, so don't take that chance if you don't have to.

Thank you Jackolantern. Your reply has helped me 'delete' my confusion. I am planning to file the next day my spouse takes the oath. I hope that won't be a problem.
Thanks again