Unauthorized employment and I485 issues

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sampathgn

Registered Users (C)
My wife has worked illegally (not knowing that her visa was not valid) for more than 6 months. We understood our mistake, went to India , got proper H4 stamping and reentered USA. Now, my I485 has been filed. Will this incident affect my GC.
 
sampathgn said:
My wife has worked illegally (not knowing that her visa was not valid) for more than 6 months. We understood our mistake, went to India , got proper H4 stamping and reentered USA. Now, my I485 has been filed. Will this incident affect my GC.
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It might not be a problem if the adjudicators don't see any gaps in I-94 status. Once you re-entered the USA on H4, the clock regarding prior violations got 'reset' - the issue here though is that the illegal employment lasted more than 180 days, which could be a problem. If you get an RFE that seems like it is looking for details that could reveal this past violation, I would consult an immigration attorney about your situation. There is a provision called 245(k) that can be invoked, but I believe it only covers infractions <180 days. In any event, your wife's actions will NOT affect YOUR GC application, but it may affect hers.
 
I am sorry to hear that. It looks like you need to use 245(i) since it is more than 180 days. When did you file your labor certificate application, I-140, and I-485? but I am not sure about that wik suggests about 245(k).

If you filed your labor certificate on Dec 20 or 21, 2000 or before that, you are eligible to file for 485 under 245i as well as your wife is eligible to file her 485 under 245i with you.

I suggest you talk to your lawyer or search for more information on this forum.

USGC485
 
re:

who gave her the job. i cant see how a company gave her a job. i think it might be some small firm. how was she paid. was there any paperwork done .was she paid cash?? if yes and there was no paperwork done ,can the INS find out ??.
 
Her firm was very small. They din't have proper attorney to guide. She was paid less than quoted in LCA. She filed tax returns also.
 
sampathgn said:
My wife has worked illegally (not knowing that her visa was not valid) for more than 6 months. We understood our mistake, went to India , got proper H4 stamping and reentered USA. Now, my I485 has been filed. Will this incident affect my GC.
Click to expand...

What was her visa status when she was working? Was it H4 too?
As it's more than 180 days, you need to take to a good attorney. 245(i), 245(k) mainly deals with status violations - like visa overstay, out of status etc. However I don't think it deals with "working illegally".
 
She was in H4 when she worked. She came to US in H4 , then obtained H1. After her H1 was approved, she went to India, came back without stamping. We din't realize that the status has changed back to H4. She continued working assuming that she could work and without realizing the fact that her status has got changed to H4. Her Co., also din't guide her.
 
Since she had a valid H1b approval for the job she performed, they may not look at it as a serious violation. It was more of a misunderstanding of the law and bad guidance from lawyers/company than an intention on her part to fraud.

I vaguely remember that there was a clause in I-485 eligibility which dealt with unintentional status violations. I will have to look up to be sure, but I think it may cover such a violation.

What was her status when she applied for 485 with you ? H1b or H4? Did she go back to India and re-enter on H4 since the last violation ? They usually focus on violations since the last entry. Consular processing may have been a better option for you, but I guess it's too late now since you have already filed for I-485.

Anyways talk to a good lawyer.
 
She reentered in H4. When I485 was filed, she was in H4 . After her reentry and I485 filing, there was no illegal working/staus violation.
 
A quick look at subsection k) seems to suggest that she will be ok, since there has been no violation since the last entry. But it's complicated and I am no lawyer so I am not sure if subsection k) is applicable to her.

1) the alien, on the date of filing an application for adjustment of status, is present in the United States pursuant to a lawful admission;

(2) the alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days -

(A) failed to maintain, continuously, a lawful status;
(B) engaged in unauthorized employment; or
(C) otherwise violated the terms and conditions of the alien's admission.
 
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