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  • Violation on the terms of my visa

    My EB-3 based employment based greencard interview is coming up. I am a little nervous because I had violated my visa status due to an unauthorized employment. Long story short, I was an F1 student and enrolled in CPT to work for company X from Jan 2012- Jun 2013. From July 2013- Sept 2013, I continued to work for company X although I was not on CPT because the school was no longer offering the course for CPT. On Oct 1, 2013, I continued working with company X and worked under H1-B visa. When I applied for I-485, there's a question: Have you ever violated the terms of your visa or overstayed your visa? and I answered No on paper. What's the best way to handle this on the interview? Other than that, my record is clear. I have no criminal history.

  • #2
    Originally posted by prayforgreencard View Post
    My EB-3 based employment based greencard interview is coming up. I am a little nervous because I had violated my visa status due to an unauthorized employment. Long story short, I was an F1 student and enrolled in CPT to work for company X from Jan 2012- Jun 2013. From July 2013- Sept 2013, I continued to work for company X although I was not on CPT because the school was no longer offering the course for CPT. On Oct 1, 2013, I continued working with company X and worked under H1-B visa. When I applied for I-485, there's a question: Have you ever violated the terms of your visa or overstayed your visa? and I answered No on paper. What's the best way to handle this on the interview? Other than that, my record is clear. I have no criminal history.
    You need to be honest with the officer. They can deny you for lying.

    According to the statute 8 USC 1255(k) -

    "An alien who is eligible to receive an immigrant visa under paragraph (1), (2), or (3) of section 1153(b) of this title (or, in the case of an alien who is an immigrant described in section 1101(a)(27)(C) of this title, under section 1153(b)(4) of this title) may adjust status pursuant to subsection (a) and notwithstanding subsection (c)(2), (c)(7), and (c)(8), if-
    (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."

    http://uscode.house.gov/view.xhtml?r...lim#0-0-0-5911


    So it seems like people who are getting employment-based green cards (priority workers, skilled workers, or advanced degree workers) are still eligible to adjust as long as they did not have unauthorized work for more than 180 days.

    BUT YOU ARE INELIGIBLE TO ADJUST STATUS IF YOU MISREPRESENT OR LIE ON YOUR GREEN CARD APPLICATION.

    IN MY OPINION, you should talk to a lawyer ASAP. I am only guessing here, a lawyer will be able to tell you what to do.

    But I think it's definitely worse to lie. Just imagine being denied because you lied about something that they wouldn't have denied you for.

    I think there is also a question about working without authorization, too. You also need to say 'yes' there.

    Did you realize it at the time? Why did you do it? You need to be ready to explain to the officer why you said no on the form.

    Again, this is just my opinion and not legal advice. My only advice is to hire a lawyer and get actual legal advice.
    2/20: Received at Chicago lockbox
    4/04: We reviewed your biometrics and are processing your case (I-765 & I-485)
    4/18: Ready to be scheduled for an interview (No notification, not updated on either site until Aug 27)
    4/19: Request to expedite EAD
    5/11: Received EAD
    6/26: Applied for Advance Parole
    8/09: Advance Parole approved
    8/29: Scheduled for Interview
    10/11: Interview
    10/12: RFE on I-130 (misplaced G28)
    10/16: Sent new G28
    10/19: Approved!

    Comment


    • #3
      Similar condition but need [email protected] please help

      Hello ,

      This for sharing the statute, being a senior member, I would like to share my case as well, apparently, it is similar, Actually, I came on B visa and applied Asylum within a month, getting receipt that you will be lawfully staying in US until your interview is determined.! While, after getting my EAD, I started my professional job where my employer started EB3 process through PERM. Now, according to INA 245 (k), alien shall apply adjust of status i-485, in the following conditions even if he violate his NON-IMMIGRATION STATUS i-e B status, but they have also mentioned or a lawful status(is that means lawful presence?) shall I adjust my status without leaving to US?????under INA 245(k). or statute 8 USC 1255(K).!!!!
      Please reply as I violate the non immigration status but not lawful status?? i am confused.
      Thanks,


      Originally posted by ember View Post
      You need to be honest with the officer. They can deny you for lying.

      According to the statute 8 USC 1255(k) -

      "An alien who is eligible to receive an immigrant visa under paragraph (1), (2), or (3) of section 1153(b) of this title (or, in the case of an alien who is an immigrant described in section 1101(a)(27)(C) of this title, under section 1153(b)(4) of this title) may adjust status pursuant to subsection (a) and notwithstanding subsection (c)(2), (c)(7), and (c)(8), if-
      (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."

      http://uscode.house.gov/view.xhtml?r...lim#0-0-0-5911


      So it seems like people who are getting employment-based green cards (priority workers, skilled workers, or advanced degree workers) are still eligible to adjust as long as they did not have unauthorized work for more than 180 days.

      BUT YOU ARE INELIGIBLE TO ADJUST STATUS IF YOU MISREPRESENT OR LIE ON YOUR GREEN CARD APPLICATION.

      IN MY OPINION, you should talk to a lawyer ASAP. I am only guessing here, a lawyer will be able to tell you what to do.

      But I think it's definitely worse to lie. Just imagine being denied because you lied about something that they wouldn't have denied you for.

      I think there is also a question about working without authorization, too. You also need to say 'yes' there.

      Did you realize it at the time? Why did you do it? You need to be ready to explain to the officer why you said no on the form.

      Again, this is just my opinion and not legal advice. My only advice is to hire a lawyer and get actual legal advice.

      Comment


      • #4
        Originally posted by conti View Post
        Hello ,

        This for sharing the statute, being a senior member, I would like to share my case as well, apparently, it is similar, Actually, I came on B visa and applied Asylum within a month, getting receipt that you will be lawfully staying in US until your interview is determined.! While, after getting my EAD, I started my professional job where my employer started EB3 process through PERM. Now, according to INA 245 (k), alien shall apply adjust of status i-485, in the following conditions even if he violate his NON-IMMIGRATION STATUS i-e B status, but they have also mentioned or a lawful status(is that means lawful presence?) shall I adjust my status without leaving to US?????under INA 245(k). or statute 8 USC 1255(K).!!!!
        Please reply as I violate the non immigration status but not lawful status?? i am confused.
        Thanks,
        Having a pending application is not status. You are considered to have been out of status since your B status expired, and if that's more than 180 days until now, you do not qualify for 245(k), and thus cannot AOS. However, since you have not accrued any "unlawful presence", you should be able to leave and do Consular Processing abroad without triggering a ban.

        This is my personal opinion and is not to be construed as legal advice.

        Comment


        • #5
          Thanks for the reply,Is there any other chance to adjust of status without leaving US

          Thanks for the reply,Is there any other chance to adjust of status without leaving US!! like if I apply H1b through my employer and if I get the H1b petition then I will be able to change of status via INA 245( a or c or K) ??
          Please reply as I am planning to apply for H1B. Is does work ??? because after I 140 petition (through EB2 or EB3), AOS should accept the case?


          Originally posted by newacct View Post
          Having a pending application is not status. You are considered to have been out of status since your B status expired, and if that's more than 180 days until now, you do not qualify for 245(k), and thus cannot AOS. However, since you have not accrued any "unlawful presence", you should be able to leave and do Consular Processing abroad without triggering a ban.

          Comment


          • #6
            Originally posted by conti View Post
            Thanks for the reply,Is there any other chance to adjust of status without leaving US!! like if I apply H1b through my employer and if I get the H1b petition then I will be able to change of status via INA 245( a or c or K) ??
            Please reply as I am planning to apply for H1B. Is does work ??? because after I 140 petition (through EB2 or EB3), AOS should accept the case?
            No. 1) An H1b petition doesn't give you status; the company would have to request a Change of Status for you to go into H1b status, and you generally must be in status in order to be eligible for Change of Status. 2) Even if you could change into H1b status, it would not make you eligible for 245(k) because you still would have been out of status for more than 180 days since your most recent admission.

            This is my personal opinion and is not to be construed as legal advice.

            Comment


            • #7
              Means I have no any chances getting my adjust of status , Actually, my company attorney said that it is no problem if you applied Asylum within 180 days of entry to US. and you can adjust the status..
              that why I started my case for PERM and H1b (they are filing for lottery) please advise..what shall i do. I cannot leave US in this condition, they may not allow to US.

              Originally posted by newacct View Post
              No. 1) An H1b petition doesn't give you status; the company would have to request a Change of Status for you to go into H1b status, and you generally must be in status in order to be eligible for Change of Status. 2) Even if you could change into H1b status, it would not make you eligible for 245(k) because you still would have been out of status for more than 180 days since your most recent admission.

              Comment


              • #8
                If your asylum application is pending without any action (like interview, referring to court) then you might be eligible to adjust under matter of L-K BIA 2004.

                Comment


                • #9
                  Originally posted by kAMALKANTA View Post
                  If your asylum application is pending without any action (like interview, referring to court) then you might be eligible to adjust under matter of L-K BIA 2004.
                  Can you please elaborate this clause LK BIA?

                  Comment


                  • #10
                    Originally posted by prayforgreencard View Post
                    My EB-3 based employment based greencard interview is coming up. I am a little nervous because I had violated my visa status due to an unauthorized employment. Long story short, I was an F1 student and enrolled in CPT to work for company X from Jan 2012- Jun 2013. From July 2013- Sept 2013, I continued to work for company X although I was not on CPT because the school was no longer offering the course for CPT. On Oct 1, 2013, I continued working with company X and worked under H1-B visa. When I applied for I-485, there's a question: Have you ever violated the terms of your visa or overstayed your visa? and I answered No on paper. What's the best way to handle this on the interview? Other than that, my record is clear. I have no criminal history.
                    How did the interview go? Did you get approved?
                    03/05/2019 Filed concurrently EB3 Regular
                    05/20/2019 Receipt Notice received
                    06/21/2019 i-140 approved
                    8/9/2019 Case transfer to NBC notice received
                    8/24/2019 Biometrics appointment 09/05/2019
                    8/30/2019 RFE for my wife, Courtesy letter for me
                    9/16/2019 Interview Ready for Schedule
                    9/17/2019 Interview Scheduled
                    9/21/2019 Interview scheduled for October 28th
                    10/17/2019 EAD approved
                    10/24/2019 EAD/AP received
                    10/28/2019 Interview Completed
                    11/25/19 New card being produced

                    Comment


                    • #11

                      Please refer to this URL
                      https://www.uscis.gov/ilink/docView/...0-0-48843.html
                      (1) Under section 245(c)(2) of the Immigration and Nationality Act, 8 U.S.C.

                      Comment


                      • #12
                        kAMALKANTA Thanks for sharing the above link, I got the interview for I 485 based on I-140 (EB3) however, my asylum application is still pending. Does it means that USCIS does check my eligibility or else officer will check during my interview. I got I-140 approval, EAD received and my attorney said that you are ok if you non immigration status got expired while case is pending, however I shared this L-K matter of Ukraine lady.....where, the BIA said that unless, the alien apply for maintain their status and USCIS however, didnt prove that they have renewed EOS multiple time where the pending Asylum case was pending since 3 years....I am confused and thinking to go for interview or not or even ask another 2 lawyer and they said it will be fine.....please advise if someone had this experienced. please.

                        Comment


                        • #13
                          Originally posted by conti View Post
                          kAMALKANTA Thanks for sharing the above link, I got the interview for I 485 based on I-140 (EB3) however, my asylum application is still pending. Does it means that USCIS does check my eligibility or else officer will check during my interview. I got I-140 approval, EAD received and my attorney said that you are ok if you non immigration status got expired while case is pending, however I shared this L-K matter of Ukraine lady.....where, the BIA said that unless, the alien apply for maintain their status and USCIS however, didnt prove that they have renewed EOS multiple time where the pending Asylum case was pending since 3 years....I am confused and thinking to go for interview or not or even ask another 2 lawyer and they said it will be fine.....please advise if someone had this experienced. please.
                          Take a lawyer with you. It will probably be fine if 2 lawyers told u so

                          Comment

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