Question for a friend....for real!

[sarrebal]

The world is small.
I have the auditors for a pre-audit in my company.

I was talking to one of them today and I found out that he's Italian, from the very same neighborhood in Milan where I am from and we went to the very same college in Italy.

Anyways, he has been married to a US citizen for more than a year. He met her in his semester abroad in France and they lived in Milan for a year.
They moved to Connecticut 4 months ago.

I assumed he obtained his GC thru CP in Italy.
I was wrong. He came with a J1 visa. He told me that since he was married to a US citizen they made him sign that his intent was to come back once his visa was expired. He did know that he wasn't gonna go back.

I told him that what he did is illegal....Too late anyways.

Even if they convince the IO that his intent changed, I have a technical question:

- If he applies for AOS his J1 gets voided and he becomes AOS pending. Can he continue working for the same accounting firm or he has to quit and wait for EAD or GC?

 

[GotPR?]

- If he applies for AOS his J1 gets voided and he becomes AOS pending. Can he continue working for the same accounting firm or he has to quit and wait for EAD or GC?

This is the same question as asking whether OPT is still valid after AOS and I'd say no definitive answer. So far, I haven't heard the cases that went into trouble because one kept working on OPT after AOS, though.

BTW, if he is subject to 2 yr HRR, he must obtain waiver before AOS.

 

[sarrebal]

This is the same question as asking whether OPT is still valid after AOS and I'd say no definitive answer. So far, I haven't heard the cases that went into trouble because one kept working on OPT after AOS, though.

BTW, if he is subject to 2 yr HRR, he must obtain waiver before AOS.

Thanks.
He shouldn't be subject to the 2yr HRR because he works for a huge public accounting firm and I'm sure he hasn't received any government fund, but I'll ask him tomorrow.

 

[dr_lha]

I'm a bit confused as to how he could be working for an accounting firm on a J-1. I thought J-1 was for "Exchange visitors" which mainly covered visiting students and researchers at Universities. I'll admit I had a J-1 years ago to come work in the USA at an amusement park, but that was part of a work exchange program, hence the J-1.

Anyway - as to your question, yes as soon as AOS was applied for, the J-1 would be invalid. Where the subtly lies is in the fact that its his employer's responsibility to make sure he's legal to work, not his. Any work he does illegally would be forgiven by USCIS when he gets his green card, and its pretty unlikely I would say that his employers would get in trouble.

 

[GotPR?]

Anyway - as to your question, yes as soon as AOS was applied for, the J-1 would be invalid.

OK, how did you find it ? I know single intent does not get along with immigration intent, but I have yet seen regulation invalidating existing status.

Where the subtly lies is in the fact that its his employer's responsibility to make sure he's legal to work, not his.

In general, if somebody did unauthorized work, employee gets punished severely. This means responsibility to keep the work authorized is not just on employer.

 

[dr_lha]

OK, how did you find it ? I know single intent does not get along with immigration intent, but I have yet seen regulation invalidating existing status.

J-1 visa doesn't allow immigration intent. So if you file for AOS you abandon your J-1, because you've shown immigration intent. There are only a few visas that you don't automatically lose by filing AOS, H-1B is one of them.

In general, if somebody did unauthorized work, employee gets punished severely. This means responsibility to keep the work authorized is not just on employer.

People filing for Green Cards through marriage to a US Citizen are not punished for working illegally by USCIS, its in the INA.

 

[jimothy]

If his original J1, or any subsequent J1s, were subject to the 2 year rule then it doesn't make any difference where his funding came from or who he now works for. To get the 2 year condition removed he will have to apply USCIS. If he doesn't they will reject his I485 and make him go do the two years back home. I discussed this with an attorney just last week who checked all of my J1 visa stamps very carefully before she would even consider pushing CIS about my AoS

*Added* I notice you don't say whether the intent they had him sign was the two year home return rule or not. The two year HRR applies to J1 visas from certain countries and is meant to make sure that the knowledge acquired by the holder is transferred back to their home country. It is nothing to do with being married to a US citizen. Maybe what he signed is something different?

 

[dr_lha]

An Italian not working from funding from either the US or Italian government would most likely not be subject to 212(E), i.e. the 2 year rule.

 

[Al Southner]

Sar

The world is small.
I have the auditors for a pre-audit in my company.

I was talking to one of them today and I found out that he's Italian, from the very same neighborhood in Milan where I am from and we went to the very same college in Italy.

Anyways, he has been married to a US citizen for more than a year. He met her in his semester abroad in France and they lived in Milan for a year.
They moved to Connecticut 4 months ago.

I assumed he obtained his GC thru CP in Italy.
I was wrong. He came with a J1 visa. He told me that since he was married to a US citizen they made him sign that his intent was to come back once his visa was expired. He did know that he wasn't gonna go back.

I told him that what he did is illegal....Too late anyways.

Even if they convince the IO that his intent changed, I have a technical question:

- If he applies for AOS his J1 gets voided and he becomes AOS pending. Can he continue working for the same accounting firm or he has to quit and wait for EAD or GC?

You friend did a big blunder by coming to the US on a J1, while married to a USC. He should have filed for his paperwork through CP and be done with it. However, since this is done... Let us deal with the current situation.

J1 is not a working visa, exchange visa which is sole purpose to transfer knoweldge to the US. However, americans would be livid to know that this is the purpose of this J1 visa, so to inflate their ego, they say is to benefit the foreigner.... As such, your friend employment was illegal and could spell trouble for him. He is already married to a USC, he's NOT going to marry a USC, which would have cured this indiscretion. So, since he signed the devil's pact with the US consulate, he needs to abide by it and hope that he can reserve it by applying for a greencard here in Uncle Sam.

However, 99% of those agreements are never overlooked by USCIS, because he wasn't inebriated while he signed it, so he will need to take it like a man and move back to Milan and enjoy life for the next 2 yrs. If the J1 sponsor asked for a completion of 2 home rule requirement, he can try to get this lifted up or removed. In most cases, he can win or lose.

So, he needs to stop working for this accounting firm immediately, and minimize his troubles.... He can't continue to work and hope that USCIS will forgive him NOW, he already drank a devil's juice by signing a document without attorney, and in most cases, USCIS agreements are always going to screw the immigrant and protect themselves.

arriverdeci,

 

[sarrebal]

J1 could authorize you to work.
He's technically here as an intern. During college I came to the US as an intern for a 4-month paid internship. That's when I got my social security number.
I'm sure he's working legally now.
Before he came here 4 months ago he was working at KPMG in Milan so I wonder why they didn't get a L1 visa for him. Anyways, whatever is done is done. I just told that he's been a little "dumb" about this since they lived for more than a year in Italy and he definitely had time to go through CP meanwhile (perhaps they didn't want to come here...but just in case....).

I don't think he's subject to the 2yr HRR, but I have to ask him about it.
He's definitely working legally now. I'm 100% sure because I went through the very same visa many years ago (no FICA deductions and you could file as non-resident....yummy).

The only problem that could arise, besides them convincing USCIS that their intent has changed, is whether he could keep working or not while AOS is pending.

 

[dr_lha]

Al, what you say would only be true if he was subject to the 2 year rule, which I doubt he would. However I'm still unclear how someone working at an accountants firm would get a J-1 visa in the first place.

Lets say he does have a J-1 with no 2 year rule. By getting the J-1 he would have had to prove significant ties to his home country, not to mention the fact he would have had to say that he had no immigration intent. This is true for all J-1 visas.

However he is allowed to change his mind. There's nothing to stop him filing AOS, people do it from J-1 all the time. Really the only thing that stops a person getting a Green Card is the 2 year rule in these cases.

 

[sarrebal]

However he is allowed to change his mind. There's nothing to stop him filing AOS, people do it from J-1 all the time. Really the only thing that stops a person getting a Green Card is the 2 year rule in these cases.

That's what I was wondering too.
I think you could still get a visa as a trainee if you graduated not later than 2 years ago.
But the home country ties...... They jointly owned an apartment in Milan and he did have a job at KPMG. Maybe he just told them that he was going to work for the NY office for a year or so.
He didn't tell me but I got that his wife wanted to move back to the US and therefore he didn't want to wait several months for his GC or K3 visa.

 

[GotPR?]

J-1 visa doesn't allow immigration intent. So if you file for AOS you abandon your J-1, because you've shown immigration intent. There are only a few visas that you don't automatically lose by filing AOS, H-1B is one of them.

The validity of J/F/B afte AOS has never ended up in conclusive answer.
It is always how people interpret immigration intent and as far as I know, CIS has never made it clear. It is safer to assume that non-immigrant status get automatically invalid, however, there is no clarification made yet.

In fact, immigration petition is I-130/I-140. Based on your interpretation, non-immigrant status should get invalid after I-130/I-140 is filed, and they go out of status which makes them ineligible to AOS(except for IR of UCS), however, I haven't heard the case that I-140 filer gets GC denied because of that.
How do you explain this ?

People filing for Green Cards through marriage to a US Citizen are not punished for working illegally by USCIS, its in the INA.

That is right. but my point is responsibility on work authorization is on both party.

 

[dr_lha]

In fact, immigration petition is I-130/I-140. Based on your interpretation, non-immigrant status should get invalid after I-130/I-140 is filed, and they go out of status which makes them ineligible to AOS(except for IR of UCS), however, I haven't heard the case that I-140 filer gets GC denied because of that.
How do you explain this ?

Filing I-130/I-140 doesn't invalidate visa status, only filing I-485 does.

 

[GotPR?]

Filing I-130/I-140 doesn't invalidate visa status, only filing I-485 does.

This is where the flaw is when people says that J1 status gets invalid as soon as AOS is filed because J1 is not allowed immigration intent.

Bottomline is, unless immigration authority made it clear, there is no black or white answer.

 

[dr_lha]

I don't get your logic Got PR. I've seen it stated fairly clearly in many places that the act of filing for AOS invalidates any visa that isn't dual intent. J-1 isn't dual intent, so therefore its invalidated by filing AOS (I-485). I don't believe its invalidated by I-130, because for one thing the person with the visa doesn't file I-130, their petitioner does. You can even file a I-130 for a J-1 visa holder if they are subject to the 2 year rule, they will simply have to return to their home country for 2 years, and then come back on a fiance/spouse visa based off the approved I-130.

 

[GotPR?]

J1 is not dual intent. If showing immigration intent invalidates J1 status, it must be invalidated earlier with I-130 or I-140(unless they file it concurrently with I-485). It is true I-130/I-140 is filed by someone else on their behalf, but it is the reason that non-immigrant visa gets denied at consulate, so that filing I-130/I-140 is pretty much considered beneficiary's intent.

Some people says one can not have 2 status' at the same time so that J1 holder can not be on J1 status as well as AOS pending. This is fundamentally wrong idea as AOS pending is NOT status. It is called authorized period of stay by attorney general, and CIS issued memo 3, 4 years ago which clearly differentiate status and authorized stay.

My point is simply it's not black or white. I wouldn't say J1 is invalid after AOS, however, I would not say it's still valid. If you ask this question to lawyers, you'll get different answer.

 

[dr_lha]

Yeah, our difference of opinion here is clearly that filing I-130 invalidates J-1. I don't think it does. All the language on the USCIS talks about "Adjustment of Status", not filing a I-130.

Still, filing AOS shows immigration intent. This is incompatible with holding a non-immigrant visa. USCIS interpret 214(b) of the INA to mean that by applying for AOS you're abandoning your non-immigrant visa, apart from the L and H categories where the visa's are "dual intent". I found a memo where they state they're considering expanding dual intent to J-1/F-1 etc, but it dated from 1999 and clearly they either put that idea on the backburner or decided against it.

To me the damning evidence lies in the concept of dual intent: If applying for AOS didn't mean you abandoned a J-1 visa, then why would they specifically have to have the concept of Dual Intent for H and L visas?

 

[GotPR?]

Yeah, our difference of opinion here is clearly that filing I-130 invalidates J-1. I don't think it does. All the language on the USCIS talks about "Adjustment of Status", not filing a I-130.

I have never said filing I-130 invalidate non-immigrant status. What I said was
according to your logic, I-130 must kill non-immigrant status.

Your opinion is H status remains the same even after AOS, however, J status gets invalid.
What is different between H and J ? It is whether dual intent or not. THat is ONLY difference, so that it is fair to say immigrantion intent alone kills J status according to your logic. Well, immigrantion intent is not something just shown. Some people already showed immigration intent with I-130, yet you mentioned it did not kill J status.

To me the damning evidence lies in the concept of dual intent: If applying for AOS didn't mean you abandoned a J-1 visa, then why would they specifically have to have the concept of Dual Intent for H and L visas?

Intent plays when one obtains visa/status and enters the US. H/L can obtain visa with immigration intent and others can not. Simple.

 

[dr_lha]

I have never said filing I-130 invalidate non-immigrant status. What I said was
according to your logic, I-130 must kill non-immigrant status.

According to my logic? How come I don't agree with that statement then.

Your opinion is H status remains the same even after AOS, however, J status gets invalid.

Not my opinion - its a fact.

What is different between H and J ? It is whether dual intent or not. THat is ONLY difference

Its the only difference that matters in this case.

, so that it is fair to say immigrantion intent alone kills J status according to your logic.

Quite correct.

Well, immigrantion intent is not something just shown. Some people already showed immigration intent with I-130, yet you mentioned it did not kill J status.

I get your point here, I just don't think it's applied like this.

To be fair can you show me a case where someone filed I-130 from a J-1 without concurrently filing I-485. Same goes for I-140, do many people get work based green cards from a J-1? The H-1B's dual intent status was designed so it could be a bridge to a Green Card.

Intent plays when one obtains visa/status and enters the US. H/L can obtain visa with immigration intent and others can not. Simple.

No, your visa can be taken away at any time if you show intent to immigrate. However the most likely way this will happen is either at the border or if you file for AOS.