Unauthorized work questions during interview

[Vuvu zela 9]

Hello VJ members,

I came in the US with an F-1 visa (student) in 2003 and got married in 2010 to my beautiful wife (US citizen).

During my summer breaks I worked outside the campus to make some extra cash.

I was not paid under the table and received my W-2's and paid my taxes at the end of each year I worked.

However, when filling for my AOS, I did not mention about my unauthorized employments on the G-325 and only mention the legal ones I got based on my CPT and OPT.

The reason being, I was advised by a friend not to mention about it because it could raise red flags, and I could be denied for permanent residency.(Huge mistake!)

I'm now learning in this forum that unauthorized work is forgiven if married to a USC.(shoot!)

Now I'm freaking out as I'm now questioning my huge mistake and not sure what to expect during my interview.

So my questions are:

1- Has anybody here been asked about unauthorized work during their interviews ? How did you respond ?

2- If asked during the interview about working illegally how should I respond ?

Should I stick with what's on the forms or just tell the truth although I did not mention about any unauthorized work on my G-325 ?

[milimelo 4,481]

Hello VJ members,

I came in the US with an F-1 visa (student) in 2003 and got married in 2010 to my beautiful wife (US citizen).

During my summer breaks I worked outside the campus to make some extra cash.

I was not paid under the table and received my W-2's and paid my taxes at the end of each year I worked.

However, when filling for my AOS, I did not mention about my unauthorized employments on the G-325 and only mention the legal ones I got based on my CPT and OPT.

The reason being, I was advised by a friend not to mention about it because it could raise red flags, and I could be denied for permanent residency.(Huge mistake!)

I'm now learning in this forum that unauthorized work is forgiven if married to a USC.(shoot!)

Now I'm freaking out as I'm now questioning my huge mistake and not sure what to expect during my interview.

So my questions are:

1- Has anybody here been asked about unauthorized work during their interviews ? How did you respond ?

2- If asked during the interview about working illegally how should I respond ?

Should I stick with what's on the forms or just tell the truth although I did not mention about any unauthorized work on my G-325 ?

NEVER EVER LIE about anything - truth always comes out.

You concealed a material fact - you have W2s and you filed taxes with that and yet chose not to list it on the form - did you see the penalty warning on the page 1 of the form. You can't stick with what's on the form as they probably ran your SSN and know your places of employment.

May want to consult an immigration attorney and see what your options are.

[JimVaPhuong 4,863]

NEVER EVER LIE about anything - truth always comes out.

You concealed a material fact - you have W2s and you filed taxes with that and yet chose not to list it on the form - did you see the penalty warning on the page 1 of the form. You can't stick with what's on the form as they probably ran your SSN and know your places of employment.

May want to consult an immigration attorney and see what your options are.

I agree that it's a misrepresentation, but I don't think it's a material misrepresentation. In order to qualify as a material misrepresentation the outcome must be dependent on the truth or falsehood of the information. Since he's married to a US citizen, they don't consider unauthorized employment when adjudicating the AOS petition. The truth would not affect the outcome.

Vuvu zela, I suggest you bring all of the documentation about your unauthorized job to the interview and give them to the IO. Don't admit that you intentionally lied about it, and don't lie about anything else. If you lie about something that IS material then you could find yourself booted out of the United States.

[Brother Hesekiel 2,236]

When applying for Adjustment of Status, neither overstay nor working without authorization are being made an issue of.

Of course, the IRS requires every resident to file an income tax return, which you did! Therefore, it was really stupid to listen to a "friend" in this issue who obviously was ill informed.

I concur with the previous posters that you should just correct the issue at AOS by informing the I.O. that you made an honest mistake. It maybe inconvenient to bring it up, but the alternative would be a potential accusation of misrepresentation which would follow you as long as you have to deal with them, beyond becoming a US citizen. Since you left a paper trail by filing tax returns, I feel it's too much of a risk not to clear this up. One inquiry from USCIS to IRS and they have all the information they need to send you home for good.

[Vuvu zela 9]

Hey folks, thanks for the many replies.

I agree, I should definitely bring it up to the IO during the interview.

But wouldn't admitting about making an honest mistake suggest that I intentionally concealed a fact ?

I guess I'm really not sure how to bring it up.

[JimVaPhuong 4,863]

Hey folks, thanks for the many replies.

I agree, I should definitely bring it up to the IO during the interview.

But wouldn't admitting about making an honest mistake suggest that I intentionally concealed a fact ?

I guess I'm really not sure how to bring it up.

I wouldn't get too worked up about it. People make mistakes on these forms all the time, and USCIS rarely makes an issue of it. I made a few mistakes myself, and the IO simply corrected them at the interview.

The IO has discretion in an adjustment of status case, but they are supposed to be predisposed to granting the AOS. There have been numerous BIA cases where it was determined that being an immediate relative of a US citizen is a significant positive factor that weighs in your favor. Making a mistake or omission on a form is not a significant enough negative factor to deny the AOS. Even intentionally omitting information from a form is not significant enough to justify denying the AOS unless the information that was omitted was "material". A legal definition of "material" is:

The word "material" means that the subject matter of the statement [or concealment] related to a fact or circumstance which would be important to the decision to be made as distinguished from an insignificant, trivial or unimportant detail.

This means that "material" information could affect the decision, and information which could not affect the decision is "immaterial". If they determine you omitted "material" information then they could conclude you were guilty of "material misrepresentation", or fraud, which IS enough of a negative factor to deny the AOS.

INA section 245 specifically says that maintaining non-immigrant status or working without authorization are not "material" facts to be considered for the adjustment of status of an immediate relative of a US citizen. It is extremely unlikely that an IO would deny you for omitting this information because you would have a very strong case for appeal, based on prior precedent cases. The Adjudicators Field Manual even clearly spells out the difference between misrepresentation and material misrepresentation so that IO's don't deny cases that would ultimately be approved by an immigration judge or the BIA.

The reason you should disclose this information at the interview is because the IO is supposed to look for a "pattern of concealment". If they find out that you worked without authorization, and you don't disclose it, then they may ask if you had any other jobs that you didn't list. If you say "no" then it's strike one, and they may continue looking for other things you didn't fully disclose. I've seen at least two AOS denials where the IO cited "evasive answers" and "pattern of concealment". If you offer the information without being asked for it then it shows good faith on your part, and an effort to correct the information that was submitted.

[Vuvu zela 9]

Thanks for the clarification Jim, as always, your advices are very much appreciated!