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.
Actually if they did put me into deportation proceedings it looks like I might be eligible for a 212(a)(5)(A) Waiver. Not that I want to go that route if I don't have to. And at this point I certainly wouldn't tempt it without speaking to a lawyer first. But the nice thing about that waiver is any fraud or misrepresentation is essentially ignored and your LPR status is retained from the original date of your GC being issued (i.e., it's as if the fraud or misrepresentation never happened).
By your own admission, there is some fraud involved, when it was approved which is a year after it was filed, you were in business school.
Marriage to a USC will have no bearing on adjudication of your case, because you never worked for the employer on a full-time basis after you left, which means it was obtained for other purpose. I would like to be a fly in the wall during the adjudication of your case, eating kosher meat and driving it with grape juice...
You need to re-read what fraud is. While the OP might not have intended to work for the petitioning employer at the time the petition was approved, that is NOT fraud. Fraud would be if she never intended to work for the employer at all.
I had the impression that if you lost your job and the green card subsequently came through, it was illegal to just accept it (although doubtless, some did this).
It wasn't a problem to file an I-485 then, before it was approved, quit the job and go off to grad school?
You need to re-read what fraud is. While the OP might not have intended to work for the petitioning employer at the time the petition was approved, that is NOT fraud. Fraud would be if she never intended to work for the employer at all.
Actually marriage to a US citizen is pretty clear evidence that there is no fraudulent intent. She could have adjusted status without any difficulty on this basis, so there was no need to engage in fraud for an immigration benefit via the EB route and her course of action was an innocent mistake. The bona fide US citizen marriage and its longevity makes fraud almost impossible to prove.
While it is exceptionally unlikely that the GC could be preserved, there is no requirement in law or regulation that obligates an individual to return a GC given in error or when one is not eligible. It certainly isn't fraud since the OP made no false statements.
It is likely to be a problem, but it's not fraud. There's a difference.
TRC,
Let us delve into the simple for the purposes of illuminating this discussion with a diversion, because your response above necessitates that we do so. This is what fraud is defined as:
1 a : deceit, trickery; specifically : intentional perversion of truth in order to induce another to part with something of value or to surrender a legal right b : an act of deceiving or misrepresenting : trick
2 a : a person who is not what he or she pretends to be : impostor; also : one who defrauds : cheat b : one that is not what it seems or is represented to be
synonyms see deception, imposture
In the case the OP presented, he clearly gained something of value from the employer (greencard). The employer lost something of value, money and human capital (the OP as employee), and never gained anything as a result of the act of the OP (leaving to pursue BS). Moreover, if the OP has indicated to the employer that he intends to go to BS, do you think the employer would have spend resources to procure a GC for the OP? We all know the answer to that question.
I like your certainty that his marriage to a USC for a long time defuse the possibility that fraud was involved, what a confident man. Have you ever heard of people whose cases and LPR status were revoked after decades in this country? In almost 90% of those cases, fraud didn't require proof beyond reasonable doubt, but rather the simple fact that more than likely or not he did commit an act of deception, and gained something of value which shouldn't been given in the 1st place. Anxious raise an important point regarding accepting a greencard after being laid-off, under what theory are you accepting it? TRC, please provide us some USCIS issued manual which condone such a behavior, because I am anxious to read about it...lol!!!
Under your theory, let take this example, a young couple recently married and one is an immigrant, wife files for the paperwork. Fast forward, interview is scheduled and attended, IO tells the couple, sorry, can't make a decision, you will receive something in the mail. Another fast forward, 3 months go by and no decision, wife has nuts attack, die due to allergy. What a tragedy!! Wife is buried and 2 months later, USCIS approves the case, I know you are asking, what is the approval date, two months after the wife has died. What is the husband supposed to do? Accept the GC and start over only for his balls to be busted when he naturalize or return it and indicate he's no longer entitled to the GC because the petitioner is deceased? I am all ears, TRC...will read your response, let me go and please my wife...lol!!! Oh....the husband also sue the offending party, which happens to be Cheesecake Factory, as the liable party for his wife's cause of dead, nuts in a mushroom soup and get $3million in settlement, what an unlucky man, wife is dead and he's a millionaire.
In the case the OP presented, he clearly gained something of value from the employer (greencard). The employer lost something of value, money and human capital (the OP as employee), and never gained anything as a result of the act of the OP (leaving to pursue BS). Moreover, if the OP has indicated to the employer that he intends to go to BS, do you think the employer would have spend resources to procure a GC for the OP? We all know the answer to that question.
I like your certainty that his marriage to a USC for a long time defuse the possibility that fraud was involved, what a confident man. Have you ever heard of people whose cases and LPR status were revoked after decades in this country? In almost 90% of those cases, fraud didn't require proof beyond reasonable doubt, but rather the simple fact that more than likely or not he did commit an act of deception, and gained something of value which shouldn't been given in the 1st place.
Anxious raise an important point regarding accepting a greencard after being laid-off, under what theory are you accepting it? TRC, please provide us some USCIS issued manual which condone such a behavior, because I am anxious to read about it...lol!!!
I am all ears, TRC...will read your response, let me go and please my wife...lol!!! Oh....the husband also sue the offending party, which happens to be Cheesecake Factory, as the liable party for his wife's cause of dead, nuts in a mushroom soup and get $3million in settlement, what an unlucky man, wife is dead and he's a millionaire.
Again, it is a question of risk management, and risk appetite. If I were in OP's place, I would probably risk it by applying when any 5 calendar years are free of any other issues ... no traffic tickets, no voting without being citizen and so on ... absolutely clean 5 years (calendar years so tax returns are complete) and then go for it.
At some point during the I-485 process, intent changed. The OP went so far as to inform USCIS of this and ask what to do, and unfortunately received poor advice from someone unqualified to give it.
I keep reading that applying for USC is more difficult or more scrutiny when you are the spouse of a USC route. Can someone explain this to me? I read it over and over here yet then I see someone wrote how easy it was for them..Why is it harder?? TX
I would also wait until AT LEAST five years have passed. Once this has occurred, USCIS can no longer initiate recission of permanent residency via a simple administrative procedure; it now needs to go to court and in such a circumstance an attorney can credibly negotiate since the worst case is that the GC was issued in the wrong category (EB vs. IR) and it's not a case of someone unqualified getting a GC.
There's more scrutiny when applying 3 year rule due to the high incidence of marriage fraud.
There's more scrutiny when applying 3 year rule due to the high incidence of marriage fraud.