Italian citizen married to US citizen

J

Joebar52

Registered Users (C)
Hi everybody. I'm an Italian citizen currently residing in the US overstaying on a tourist Visa. I recently got married to an US Citizen and i'm undergoing the process to adjust my status to permanent resident (just in case, this is a real love marriage).
I came to the US for the first time in 2006 under a Q1 Visa which granted me a SSN. I have also filed my taxes from 2006 to now. At the time of my last entry as a tourist I wasn't planning to stay, but destiny took its turn and I decided to stay finding a job. Now, at the time of my employment I had a valid H3 VISA from a previous job that I quit, along with my SSN. I worked for almost two years after my Visa expired, and my employer never asked to either revise or update the I9 form that I filled when first employed.
My wife and I had the interview last week where everything went fine until the very end,when they gave me an I72 form (request for additional evidence), asking for documents that prove that my employment started in 2010, such as my first paycheck, job application and printed schedule of the week when I started.
This is where the problems start to rise: I'm not in possession of the schedule (neither does my employer)and I have never filled a job application. When I asked my lawyer about the request, he was baffled that we were asked for the papers, since, according to him, this has never happened to any of his clients before.
Needless to say, after hearing his words I panicked a little bit. He also added that I should try to gather as much evidence as I could, and he would take care of the rest. For now I'm only able to get my paycheck, since the other two have never existed. I have a month to submit the aforementioned documents, and failure will result in automatic withdrawal/denial of my application. My wife is getting really worried that I may fail to present the necessary evidences, get denied and incur in the 10 year ban and suggested we should withdraw the case, leave the country and apply from Italy ( I have a feeling she wants a vacation ;) ), while my biggest concern is that my employer (which I almost consider a father figure) may get in trouble for not following up on the I9 and continued to employ me even after I wasn't eligible anymore. In this case, I'm willing to leave the country, for I feel that I shouldn't cause any problems to anyone. I haven't talked to the lawyer since. If anybody has any suggestions or has experienced a similar scenario, I'd be very grateful. Thank you everybody.
 
At the time of my last entry as a tourist I wasn't planning to stay, but destiny took its turn and I decided to stay finding a job. Now, at the time of my employment I had a valid H3 VISA from a previous job that I quit, along with my SSN. I worked for almost two years after my Visa expired, and my employer never asked to either revise or update the I9 form that I filled when first employed.
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Do you mean you overstayed the H3 visa by 2 years, left the US, and then returned to the US on a tourist visa which you are also overstaying? Did you ever use the H3 visa to enter the US after leaving the job on which the visa was based? Did you ever leave the US since first working illegally?

You mentioned a Q1 visa, H3 visa, and tourist visa. When did you use the H3 and tourist visas to enter the US?
 
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Hi Jack, to to answer your question, I got in the country in 2009 using my H3. Towards the end of 2009 I quit my job and went back home to Italy. In 2010 a friend and I decided to come on vacation (he actually asked me to tag along, since he doesn't speak a word of English). My H3 visa was still valid, and at the POE (LAX) the officer assumed I was entering on my H3, but I told her that I was actually coming on vacation and had no intentions of working or using my H3 as entry, thus I entered on a Visa Waiver. So I think that technically I overstayed on my tourist Visa for a little over 2 years, but used my H3 for employment. I have never worked illegally until now and this is my very first time overstaying, and I didn't use the H3 to enter the country. Also, Ive never left that country since then. Hope this clarifies the situation a little bit. Thank you!
 
My H3 visa was still valid, and at the POE (LAX) the officer assumed I was entering on my H3, but I told her that I was actually coming on vacation and had no intentions of working or using my H3 as entry, thus I entered on a Visa Waiver.
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That's good news for you. Because if you had entered with the H3 while knowing the job wasn't there for you, that would be visa fraud, another violation on top of your overstay. I assume you got an I-94W stamped for 90 days, so have proof that you used something other than the H3, and you're not just relying on memory.

The bad news is that you used the visa waiver, not a tourist visa. With the visa waiver you lose your right to challenge your removal if they try to deport you, according to a series of court rulings over the past few years. As a result of those rulings, they were routinely denying or suspending the adjustment applications of visa waiver overstayers.

Now they've relaxed that policy and are using their discretion to decide the cases. They probably want to see that your illegal employment started after the last time you entered the US, because if it's a continuation of illegal employment that started before your last entry, that would have made you ineligible to enter with the visa waiver, which in turn would make you ineligible for adjustment of status.

It's also possible that they're trying to get you to give them the disqualifying evidence against yourself. Once they have the evidence that you've been employed illegally since 2010, they could use that against you.

My wife is getting really worried that I may fail to present the necessary evidences, get denied and incur in the 10 year ban and suggested we should withdraw the case, leave the country and apply from Italy...
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If you leave the country without a green card being approved, the 10-year ban will be imposed whether you withdraw the case or get a denial.
 
Jackolantern said:
It's also possible that they're trying to get you to give them the disqualifying evidence against yourself. Once they have the evidence that you've been employed illegally since 2010, they could use that against you.
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Little update, that's exactly what happened. I got denied under the assumption that I already had in mind to stay and work here, therefore I'm been accused of "misrepresenting a material fact because you sought an immigration benefit by fraud". This decision is also enforced by the fact that "obtaining employment within three weeks of your arrival indicates that you already preconceived to find employment".

Now, the only option I'm offered is to fill a I-601 for extreme hardship for my wife and admitting the fraud. And I'm not going to admit a crime I didn't commit. My attorney states that filing the form would be useless anyways, as there's no way to prove that my wife would sustain extreme hardship, resulting in my deportation plus admitting a crime.
I'm a little lost right now, as I don't see a light at the end of the tunnel anymore. My attorney also suggested to bring the case in front of a judge, but that would require (according to him) a waiting time of at least a year or two. My big problem is also that my work permit (if not revoked) will expire in February next 2014, and I'm not willing to take a chance and keep working for the fear of digging myself deeper in trouble.

I'd also like to add that I work as a waiter, a job that in total honesty doesn't require very special skills, if I really had planned to stay I would have probably found a job the very next day given my experience.

Again, I'm pretty much lost and I don't know what to do,any suggestions or even harsh truths would be very appreciated. Thank you everybody.
 
Joebar52 said:
This decision is also enforced by the fact that "obtaining employment within three weeks of your arrival indicates that you already preconceived to find employment".
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That killed you. If you claim you're not coming to work then almost immediately start working, it makes it pretty easy to claim that you lied upon entrance.

Unless you have a really good reason (and evidence to back it up) that you truly intended not to work on entrance and circumstances changed, you're better off filing the I-601A. An appeal isn't likely to change the facts of your case.
 
Thanks for your answer, yeah I really don't have any "evidence" but the fact that when I came in I had an H3 visa valid and I could have used it to go back to work where I used to work before and just keep on renewing it, or overstay on that and it would have made the whole process much easier. The frustrating part is getting potentially thrown out on a pure suspicion, for I feel like they cannot prove it either. Only God and I know what was going on through my mind when I landed at LAX last time, and I have no way to prove it. Well, sorry for the rant, what should I expect next? I'm not filling the I-601, so should I just sit here and wait for the removal letter? I mean, at this point I just want to know what's going to be, whatever it may be...
 
You can't prove what was going on in your mind. But what you may be able to prove is what changed in the 3 week span after your last entry into the US to make you suddenly want to work when you didn't plan on working before. Did your wife unexpectedly lose her job in those 3 weeks? Did she incur medical expenses? Did she get a warning from her bank about foreclosure?
 
Joebar52 said:
The frustrating part is getting potentially thrown out on a pure suspicion, for I feel like they cannot prove it either. Only God and I know what was going on through my mind when I landed at LAX last time, and I have no way to prove it.
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The problem you have is that it has been settled law for over 35 years that intent can be inferred based on actions soon afterwards. By starting to work within 30 days, USCIS is allowed to conclude that your intent was to work (and therefore your misrepresented yourself at the POE). It's not insurmountable, but the onus is on you to prove otherwise. If you had waited 75-90 days to start working, USCIS would have needed to provide additional evidence to support their claim.
 
living in Italy-another option

Hi, I am adding a new twist here as someone understanding your story. I am really in the hopes you have or are getting this settled and can stay in the US. I absolutely know how stressful this is for you. My husband is Italian and I am American. We debated years where to live and lived separately for at least 3 years (even after marriage). The process for the US was long and tedious; I have children as well. For many reasons, we chose to live in Italy (as a family) rather then go through the process (I have to add that it was not solely for this reason alone but other factors). It has been a difficult adjustment but also is the way we could find the solution of being together with the least stress. We have been here over two years now and may one day go back to the US but are still so happy just to be together while my children are living a very rich life in a new culture. I add this only as a last thought to consider if it becomes critical in being together and hope it is enough to keep stress down (not having any options being the worst stressor). Again, I hope everything was fine and you can live the life you both choose first. Best of luck to you both.
 
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