Citizenship Problem? Fraudulent Intent For Green Card?

[kronos]

Hello, I have a bit of an unusual situation and I'm concerned that if I apply for citizenship, BCIS will determine that I had fraudulent intent with my employer sponsored green card application and will deport me from the US permanently.

I entered the US from Canada to study at an American university. After graduating I went to work for a technology company on an H1B. Shortly thereafter I started the process for a green card through my employer. Then it starts to get interesting.

Before my permanent residency was approved I left my job at the technology company, got married to an American citizen and then started business school in the span of 3 months. My permanent residency was approved 1 year into business school.

I have been married to a US citizen for 7 years now, we have 1 son and another child on the way. I have been working at progressively better paying jobs since graduating business school. However if I apply for US citizenship now, will BCIS determine that I had fraudulent intent for my GC and deport me from the US permanently?

Perhaps I shouldn't have let the GC application continue under employer sponsorship and I should have started the GC process based on my marriage to a US citizen. However that's history, I am stuck with this situation. At the time I was preparing to leave my employer I was trying to get advice. I ended up calling the BCIS 800 hotline number. Someone there on the line actually recommended just letting the employer sponsored app go through.

My question is whether I'm up s**t creek if I try to apply for citizenship? Is there any way I can fix this now without getting deported and barred from re-entering the US for life?

 

[TheRealCanadian]

Perhaps I shouldn't have let the GC application continue under employer sponsorship and I should have started the GC process based on my marriage to a US citizen.

Yup.

At the time I was preparing to leave my employer I was trying to get advice. I ended up calling the BCIS 800 hotline number. Someone there on the line actually recommended just letting the employer sponsored app go through.

And this is why I tell people over and over again to NEVER, NEVER, NEVER trust a single word they say on the 800 number. They are not qualified to give you legal advice.

My question is whether I'm up s**t creek if I try to apply for citizenship? Is there any way I can fix this now without getting deported and barred from re-entering the US for life?

You need the services of a competent attorney. It's unlikely that USCIS will dig into your employment history, but you never know.

 

[namecheckvictim]

If i was you, i will just leave the US Citizenship alone and keep renewing the GC. But Before i would that i will consult a really, really good attorney and try one time if i could fix this mess. Since you kept quite for so long they probably will pursue the fraud intent, specially when you knowingly kept taking advantages of a permanent resident like employment, maybe even student loans, grants etc which lawfully were not supposed to be bestowed upon you.
And the worse thing is that if they were to revoke your status now or if they ever find out and are put into removal or deportation proceedings there will be no waiver available for your situation.

 

[jayoa]

I personally do not see why your green card will be revoked for leaving your original employer but I am not sure how that works with H1B. The very best thing for you to do is to seek a competent attorney. Worse comes to worst if they revoke your green card, which I doubt, perhaps you can seek other options through your wife. It all comes down to seeing a good attorney first to know what to do. If you can renew your green card without a problem, I doubt there will be any problem with filing an N400 because in either case I believe they perform certain checks but more comprehensive in the case of N400 applications and I don;t think green card fraud is one of those checks they perform on an N400 application. Bottomline is that you will never know if you do not file the N400.

 

[Jackolantern]

Before my permanent residency was approved I left my job at the technology company, got married to an American citizen and then started business school in the span of 3 months. My permanent residency was approved 1 year into business school.

How long after GC approval did you start working full-time for anybody, and was that post-GC job "same or similar" to the job your employment-based GC was based on?

 

[Jackolantern]

I personally do not see why your green card will be revoked for leaving your original employer but I am not sure how that works with H1B.

He was supposed to work for the sponsoring employer once the GC is approved, or at least work in another "same or similar" job.

 

[kronos]

How long after GC approval did you start working full-time for anybody, and was that post-GC job "same or similar" to the job your employment-based GC was based on?

I started a full time job about a year after I received my green card. I'd have to go back and check the exact job description / category that my GC application was based on but I'm pretty it would be classified as similar.

 

[jayoa]

He was supposed to work for the sponsoring employer once the GC is approved, or at least work in another "same or similar" job.

Okay. Please also explain why you left your original job and why you did or did not take a similar or dis-similar job with another employer. For example if you were sick and were unable to work for anyone at all or the original company filed for bankruptcy and everyone was let go so you had to move on with nothing else you could do even though you wanted to stay with the company. Perhaps this can help.

 

[Jackolantern]

My question is whether I'm up s**t creek if I try to apply for citizenship? Is there any way I can fix this now without getting deported and barred from re-entering the US for life?

If USCIS decides to dig into your employment history, and they find out that you did not work for the sponsoring employer nor in any "same or similar" job after GC approval, and they decide to prosecute your case aggressively, I believe your green card is doomed.

However, it is doubtful whether this rises to the level of fraud that would get you banned from the US for life or for any significant period of time. You were actually working for the employer (for how long?), so it wasn't some fake job that was fabricated to help you get a green card. And if USCIS can't convince the court to ban you, then you would simply be able to reapply through your spouse and be back in the US in a few months. So although they will almost surely deny your citizenship if they know the story of your employment situation, there is a good possibility that they will decide against attempting to revoke your green card, given the chances of you quickly returning to the US via a marriage-based application.

And of course, they might not dig into your employment history in the first place.

 

[kronos]

Before I started business school I was working for the employer for 4 years. And even continued to do part time work for them for the first 6 months of business school.

My real concern is that if they revoke my green card, they will consider my time in the US for the last 6 years to be an overstay of my previous visa. In which case I can be barred from re-entering the US for 10 years.

 

[anxiouscdn2]

Like others said, get a lawyer - a good one. You have so much at stake here. Don't try to figure out your situation from the advice of strangers on an online forum. (Of course, that includes me, but so be it). Unless, of course, you and your family don't mind rolling the dice on the possibility of a 10-year forced relocation to Canada.

Best wishes from a fellow Canadian.

 

[Jackolantern]

I started a full time job about a year after I received my green card. I'd have to go back and check the exact job description / category that my GC application was based on but I'm pretty it would be classified as similar.

Good. So at least you can make the case that your plan was to work in a similar job (albeit for more salary) after completing business school, and you didn't expect the green card to be approved while you were still in school.

The citizenship application requires you to list the past 5 years of study and employment. If/when you apply, it would help if you waited long enough so that 5-year history starts with one of your post-graduation full-time jobs, preferably a similar job.

 

[JPBoston]

kronos, why don't you apply for naturalization based on the 3-year rule of being married to a USC and see how that works out? I got my GC through work shortly before I got married to my USC wife. I ended up applying for my naturalization after 3 years of marriage even though I had gotten my GC through a former employer because this is allowed and it allowed me a quicker naturalization route. I was not questioned on anything related to my work history or my marriage for that matter but of course every interview is different. Either way, you will get to see what they say and maybe they may show some consideration since you're married. Do you have kids in this marriage?

 

[Jackolantern]

Yes, you should see a lawyer. But if they give you an "OK, no problem!" assessment, ask them if they are confident enough of that position that they would defend/appeal your case for free if you USCIS attempted to revoke your green card.

 

[Jackolantern]

kronos, why don't you apply for naturalization based on the 3-year rule of being married to a USC and see how that works out?

That could make things worse. Applying based on the 3-year marriage rule puts USCIS into a high-scrutiny mode, and that higher scrutiny mentality could lead them to dive into his employment history. He has already completed 5 years as a permanent resident, so the 3 year rule would not make things quicker.

 

[jayoa]

My real concern is that if they revoke my green card, they will consider my time in the US for the last 6 years to be an overstay of my previous visa. In which case I can be barred from re-entering the US for 10 years.

Not if you file for a green card while you are still here. A friend of mine was in a worse situation a few years back he was here schooling and at some point could not afford school anymore so he could not go, thus violating his stay here. The USCIS issued him the order to vacate the US, despite that he still filed for a green card with a USC spouse and got his green card and moved on with his life. Once he filed for his green card with his USC wife, he was virtually untouchable because he essentially invoked an Adjustment Of Status process that made him eligible for a green card. What I'm trying to let you know is that it is not the worst case yet, certainly consult a good immigration attorney to file for your N400 (do not go this alone) and be ready to proceed with whatever options you can such as a new AOS if they revoke the original green card with your USC spouse to counter anything the USCIS may have in store if they so decide. You've got a family now that will suffer great setbacks if you were not here to support them for Christ's sake, I can't remember those statutes that such details pertain to. Get an attorney, should cost you $2000 or less with a payment plan.

 

[Jackolantern]

My real concern is that if they revoke my green card, they will consider my time in the US for the last 6 years to be an overstay of my previous visa.

No. When they revoke somebody's green card, they don't retroactively turn your time of permanent residence or adjustment of status into an overstay if it was not filed on a fraudulent or frivolous basis. They're not going to be able to prove fraud at the time of filing, as you were in a real job for a real employer and you actually worked for them at the time of filing the I-485 and continued to work for them for a some time after that. If there is a ban, it would be for a finding of fraud in the subsequent circumstances, not for overstaying.

 

[Jackolantern]

Not if you file for a green card while you are still here. A friend of mine was in a worse situation a few years back he was here schooling and at some point could not afford school anymore so he could not go, thus violating his stay here. The USCIS issued him the order to vacate the US, despite that he still filed for a green card with a USC spouse and got his green card and moved on with his life. Once he filed for his green card with his USC wife, he was virtually untouchable because he essentially invoked an Adjustment Of Status process that made him eligible for a green card.

That is an entirely different circumstance and should not be used in any way to give assurances to the OP.

 

[jayoa]

That is an entirely different circumstance and should not be used in any way to give assurances to the OP.

Understood that it was a different circumstance, but my point was that it is a worse case scenario that they issue anyone the order to vacate the country and you still have ways to get around it. Assuming they revoke his green card, which I doubt will be the case, they will subsequently issue an order to vacate the country. Before or after they do that, he can similarly file an AOS.

 

[JPBoston]

That could make things worse. Applying based on the 3-year marriage rule puts USCIS into a high-scrutiny mode, and that higher scrutiny mentality could lead them to dive into his employment history. He has already completed 5 years as a permanent resident, so the 3 year rule would not make things quicker.

I didn't mean to convey the impression that the OP would have a quicker option to naturalize here because I did realize the OP had already crossed the 5 year term. In my case it was true because I was able to file before the 5 year wait was over. I was actually trying to say that going the marriage based route might actually take the heat off his work history but I do understand what you're saying about the potential for inviting extra scrutiny. In my own case, not sure what level of scrutiny was done because during my interview, there were no questions asked about my work history at all and my IO just confirmed my wife's and son's names during the interview and that was it regarding the family. But yes, every interview and interviewer is different and it makes sense for the OP to consult with a good immigration lawyer about this.