I-485: Continued working part-time for Cnd business while already in US - "Unauthorized employment"?

[LuciDreamer]

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[Jackolantern]

For immigration purposes, what counts is which country the work is performed. If you physically stayed in Canada doing work for a US company, US immigration has no jurisdiction over that. But physically being in the US while doing work for anybody (domestic or foreign) would be an immigration violation if you don't have the appropriate work authorization. So what you did was indeed unauthorized employment.

However, there is section 245(k) which normally forgives up to 180 days of unauthorized employment for employment-based green card applicants. But I don't know if you're eligible for such relief, as 245(k) is meant mainly for situations such as a lapse in your H1B or TN status, not side jobs.

Still, there is some hope, because the main issue is unauthorized employment since your last admission to the US (not including entries with Advance Parole). If you are "clean" since your last entry with H1B or TN, you're probably OK. Just don't volunteer anything to attract more attention to what you did. Wait for them to raise the issue, don't proactively try to explain it.

 

[LuciDreamer]

Thanks for your reply and it does inspire some hope for me.

What are the actual chances that they may raise the issue from that stupid mistake?

In my resume and list of employers in Form 325 there is no indication besides this employment end year (when I was already working in the US) that I could have been working for my client from the US. The description implies that the work had to be done on client site and not remotely. My concern is that the immigration officer may misinterpret that against me.

I should probably ask my client for proof that during the last year I supported his websites occasionally when visiting Canada only with specific dates indicated. Do you think that will cover me in a case of RFE?

 

[Jackolantern]

Are you "clean" of that work since your last last entry to the US?

 

[LuciDreamer]

Last entry was stamped in 2007 but work is recorded between 2006-2008, it says my employer/client is in Canada.

 

[Jackolantern]

When was your actual last legal entry to the US, regardless of whether they stamped it in your passport? Surely you must have taken at least one trip to Canada after 2007, to visit friends/family or the Canadian-based client? What is your status right now, is it H1B or TN?

 

[LuciDreamer]

I am in H1B now since Oct. 2008 after switching from TN within the US, I did not need to travel outside to enter on H1B. On the AOS paperwork, they entered 2007 as my last entry.
Yes, I drove to Canada by car and back on Christmas 2008 since I have a daughter there to visit and that was the last time I assisted my client with the website. Hence the end date of that employment - Dec 2008. But as a Canadian you can cross the border without any stamp or visa just showing the passport and stating the purpose of the trip (vacation, work, etc.). I don't think the officers make any entries in the system if you don't apply for new status at POE. I am afraid that I can hardly prove with documents that I was in Canada, except asking my client write a letter for me confirm that I was on his site doing support. Any recommendations?

 

[Jackolantern]

That means your last entry was Christmas 2008. That should be the entry date written on the AOS form. I hope they haven't filed it yet.

You're supposed to list the last date of actual physical and legal entry to the US, not the last date they stamped your passport. If they swiped your passport when you entered the US, that entry will almost surely be in the system. If they didn't swipe your passport, they might have captured your license plate. Otherwise, as a Canadian they'll take your word for the last entry date unless they have a reason to disbelieve you; you don't need to prove it with a passport stamp.

Don't ask the client to write anything now. Just write down your actual 2008 entry date, not the 2007 date, and deal with the other issue only if USCIS brings it up. It probably won't be an issue, because the main area of concern is unauthorized employment since your last entry. They're not likely to go back further unless it was egregious.

 

[LuciDreamer]

Thanks again Jackolantern, I will definitely think about correcting the entry date, though, all the forms have already been signed and mailed to the attorney.
I gave my passport to the office on the entry in Ogdensburg POE, after a couple of questions it was returned to me and I cannot guarantee that any record was entered in the system to prove my entry and I would not want to raise additional questions like you mentioned. It is different then going through the airport customs and immigration where they do more thorough check and record entries.

 

[Jackolantern]

Thanks again Jackolantern, I will definitely think about correcting the entry date, though, all the forms have already been signed and mailed to the attorney.

Then fill out a new I-485 with the corrected entry date, and tell the attorney to wait to receive the revised version.

I gave my passport to the office on the entry in Ogdensburg POE, after a couple of questions it was returned to me and I cannot guarantee that any record was entered in the system to prove my entry and I would not want to raise additional questions like you mentioned.

It's not a problem if you write down the 2008 entry and it's not in the system. They know that for many Canadians entering by land, the entry is not recorded. As long as you otherwise have proof of being approved for the status you claim to have (in your case, the H1B visa or H1B approved petition), if they don't have a record of the entry they'll take your word for for the entry date unless there is a discrepancy to make them doubt you.

However, it could be a problem if the 2008 entry actually is in the system* and you claim 2007 was your last entry. That's a glaring discrepancy that could cause trouble for you.


*US and Canadian border agencies do some amount of data sharing both ways. So even if the US agents didn't swipe your passport when you entered the US in 2008, but the Canadian agents swiped your passport in 2008 when you entered Canada, that occurrence of exiting the US may be known by the US government. Obviously, a 2008 exit record isn't consistent with the claim that your last entry to the US was in 2007.

 

[LuciDreamer]

I agree with that 100%, probably making the correction is the safest way in this case.

 

[Jackolantern]

Using the 2008 entry date has multiple advantages:

1. It reflects reality.
2. It avoids the discrepancy I mentioned above.
3. It gives you a clean record (i.e. no unauthorized employment) since your last entry.
4. It makes the 2008 employment date easier to explain if you have to; you went to Canada in late 2008 to finish up that work.

 

[TheRealCanadian]

Jackolantern is correct. Use the 2008 date.

 

[LuciDreamer]

Thanks Jackolantern and TheRealCanadian.
I made the corrections as per your suggestions to reflect the actual last entry date from Canada by land. Since my passport was never stamped by the POE officer, I still have some concerns that the USCIS may ask me confirm the fact I entered the US on that date even if there are so many Canadians crossing the US border daily. I remember on the way to Canada in 2008 I did not even bother showing my passport, they accepted my wallet Canadian citizenship card which I had handy and let me in.
Another thing I would like to ask... if my I-485 gets denied, will I still be able to work in H1B status and later apply for AOS with my spouse who won the DV lottery for 2011? What are my options in general if my I-485 is denied, any chances left or I should think about packing my suitcases? Thank you.

 

[TheRealCanadian]

I made the corrections as per your suggestions to reflect the actual last entry date from Canada by land. Since my passport was never stamped by the POE officer, I still have some concerns that the USCIS may ask me confirm the fact I entered the US on that date even if there are so many Canadians crossing the US border daily.

I've never had that problem, despite having numerous petitions where I had no evidence of the specific date of entry in the form of a passport stamp.

Another thing I would like to ask... if my I-485 gets denied, will I still be able to work in H1B status and later apply for AOS with my spouse who won the DV lottery for 2011? What are my options in general if my I-485 is denied, any chances left or I should think about packing my suitcases? Thank you.

Depends on why it was denied. Why do you think it will be?

 

[LuciDreamer]

I've never had that problem, despite having numerous petitions where I had no evidence of the specific date of entry in the form of a passport stamp.

I-485 may be different in a sense that the last entry date can make a huge difference in this case (245(i) rule). Therefore, the CIS may RFE the last entry date, I read similar stories on the internet.

Depends on why it was denied. Why do you think it will be?

There are numerous reports on the net of I-485 applicants getting RFEs and NOIDs based on various different reasons. One main criteria the CIS staff is eagled at is violation of status. Though I still believe that in reality I did not do anything illegal and worked for my old client in Canada being on H1B in the US, the CIS may misinterpret the dates as "violation of my status". These days and under certain economic conditions, also to reduce the backlogs, the CIS are scrutinizing applications, hence the rise of RFEs and denials. Their assumption for future immigrants is rather "guilty if not proven innocent".... well, this is just my humble opinion anyway, I would be happy to be found wrong.

 

[TheRealCanadian]

I-485 may be different in a sense that the last entry date can make a huge difference in this case (245(i) rule). Therefore, the CIS may RFE the last entry date, I read similar stories on the internet.

Are you claiming 245k relief and the later date makes a difference? If so, then you probably should fill out an affidavit regarding the entry date. If not, then don't worry about it.

USCIS is quite familiar with Canadians re-entering the US without a passport stamp or new I-94 being issued, believe it or not.

 

[Jackolantern]

There are numerous reports on the net of I-485 applicants getting RFEs and NOIDs based on various different reasons. One main criteria the CIS staff is eagled at is violation of status. Though I still believe that in reality I did not do anything illegal and worked for my old client in Canada being on H1B in the US, the CIS may misinterpret the dates as "violation of my status". These days and under certain economic conditions, also to reduce the backlogs, the CIS are scrutinizing applications, hence the rise of RFEs and denials. Their assumption for future immigrants is rather "guilty if not proven innocent".... well, this is just my humble opinion anyway, I would be happy to be found wrong.

The fact still remains that your last entry was in 2008, so you need to put that date. If you instead write 2007, but they see the 2008 entry in their system, that's when you stand to get in real trouble.

 

[LuciDreamer]

Yes, that part is done and the form has the correct entry date.

 

[LuciDreamer]

Are you claiming 245k relief and the later date makes a difference? If so, then you probably should fill out an affidavit regarding the entry date. If not, then don't worry about it.

Trying to understand that part better... Once the clock is reset by re-entering the US, the 245k relief is not really needed, correct? Once entered the US and no unauthorized employment exists, the person is clean then? If that is the case, then, yes, I should not be claiming the 245k relief. Thanks.