Starting filing process, overstay/worked

[confusedimmigrant 0]

I am getting prepared to start the filing process for AOS based on marriage to a US citizen. I entered legally on a student visa and overstayed. During that time I have worked, on my own SSN, and filed taxes. I think I am comfortable with most of the paperwork and requirements, but have one huge question: in my current job (of 5.5 years), I was handed an I-9 form after having worked with the company for several years (they had all employees resubmit their forms). The form they gave me was a photocopy that had the 'us citizen' box already checked. I did not correct this form. If I am honest about everything, will this be held against me?

[TimeTravel 78]

Overstay can be problem. You should look for some waiver for your case.

[PinkMelody 1]

Overstay can be problem. You should look for some waiver for your case.

I thought I saw somewhere in here stated, 'overstay' and 'work' would not be a problem regarding AOS, married to USC. I'm little worried about ticked on USC box. I'm not an expert so I don't know what to say but being honest is the best IMO.

[Little_My 464]

Overstay and unauthorized work are not issues during AOS - claiming to be a US citizen is another story. You should have made the correction in the form when you noticed "US citizen" was ticked.. This can be a very big problem. Claiming to be a US citizen is a very serious offense in the eyes of USCIS that not only makes you ineligible for AOS but can also carry a life time ban to the US.

There are some very experienced and knowledgeable members here on VJ who will probably chime in here soon - but personally I think it might be lawyer time.

[JimVaPhuong 4,863]

Overstay can be problem. You should look for some waiver for your case.

Overstay and working without authorization can be issues in some adjustment of status cases, but they are specifically not relevant for someone adjusting status as an immediate relative of a US citizen. No waiver is needed.

Claiming to be a US citizen to any immigration officer is an offense that makes the alien inadmissible, and there is no waiver for this. There is an exception if the alien had been in the US since they were 16 years old, if their parents are/were US citizens, and if they reasonably believed that they were also a US citizen. I doubt this exception applies to the OP.

confusedimmigrant, your employer is required to collect the I9 form, but they don't send it to USCIS. They are required to keep it on file. I suggest you speak with your employer's personnel department and see if they can pull your I9 form and allow you to submit a corrected form in it's place. It's unlikely that the form is going to cause you any problems because USCIS likely isn't aware of it, but it remains a potential time bomb as long as it exists.

[confusedimmigrant 0]

Ok, I have absolutely no intention to lie to any immigration officer. I have also never claimed to be a citizen with any government agency; voting, jury duty, etc, etc.

I should also mention that I am planning to leave my current job in 4 months to stay at home with the baby that we are expecting. I am considering waiting until then to start filing to make things more clear cut. Do you think this is advisable?

[JimVaPhuong 4,863]

Ok, I have absolutely no intention to lie to any immigration officer. I have also never claimed to be a citizen with any government agency; voting, jury duty, etc, etc.

I should also mention that I am planning to leave my current job in 4 months to stay at home with the baby that we are expecting. I am considering waiting until then to start filing to make things more clear cut. Do you think this is advisable?

You signed an I9 form that stated you were a US citizen. You and your employer both signed that form under penalty of perjury. In fact, the exact text from the form is:

I attest, under penalty of perjury, that I am (check one of the following):

[ ] A citizen of the United States

...

If the US government ever gets their hands on that form then you could be toast. Talk to your employer and see if you can get them to pull that form and destroy it. As long as that form exists it remains a potential problem for you. It's a potential problem for your employer as well because they signed the form, under penalty of perjury, that you provided documentation proving the status you claimed on the form (US citizen). They even had to list the documents you provided that proved that status. You obviously didn't provide that documentation, which means they didn't comply with the law. It's in everyone's best interest if that form is destroyed.

[aaron2020 11,651]

Even if you destroy the I-9, how are you planning to answer the question - "Have you ever claimed to be a US citizen?".

For those advocating destroying the document, would you suggest the OP answer truthfully in the naturalization application, or are you suggesting the OP lie on the naturalization application.

P.S. i thought encouraging unlawful behavior to gain an immigration benefit is a violation of the TOS on this forum. How come it's okay to advocate destroying records that materially affect a case? Or does the rule apply only to some posters but not others?

Edited April 18, 2012 by aaron2020

[Journey Man 0]

Uh, destroying the form, absolutely not. That would be obstruction of justice, a felony. The cover up is always the problem. Trying to amend could be a different story, but you cannot cannot cannot ask them to destroy the form.

My post was to JimVaPhuong. What I meant was if the OP can get a chance to correct it. Please disregard my other post about asking a question to JimVaPhuong.

Edited April 18, 2012 by Journey Man

[Mike X Man 37]

I'm sorry...but you are screwed. As mentioned, the overstay and working illegally are not the biggest issues. The misrepresentation as a US citizen is. I believe employers are required by law to save I9 forms for at least 1 year after your employment has been terminated or 3 years if your employment is active. I would not advise you to AOS at this time. In honesty, to keep your chances alive of a successful AOS, you should quit that job.

Edited April 18, 2012 by MikeX

[Little_My 464]

This thread is almost 5 months old and the OP has not commented on it since December..

[Penguin_ie 5,996]

*** One post bordering on asking about illegal activity and one quoting same removed. ****

[aaron2020 11,651]

*** One post bordering on asking about illegal activity and one quoting same removed. ****

Since you are deleting a post "bordering on asking about illegal activity and one quoting same," why did you leave JimVaPhouong's post advising the OP to destroy evidence that materially affect the OP's naturalization?

If the US government ever gets their hands on that form then you could be toast. Talk to your employer and see if you can get them to pull that form and destroy it. As long as that form exists it remains a potential problem for you. It's a potential problem for your employer as well because they signed the form, under penalty of perjury, that you provided documentation proving the status you claimed on the form (US citizen). They even had to list the documents you provided that proved that status. You obviously didn't provide that documentation, which means they didn't comply with the law. It's in everyone's best interest if that form is destroyed.

Here is the citation for the duty to maintain the I-9 record from USCIS; http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=31b3ab0a43b5d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD

Do not file Form I-9 with U.S. Immigrations and Customs Enforcement (ICE) or USCIS. Form I-9 must be kept by the employer either for three years after the date of hire or for one year after employment is terminated, whichever is later. The form must be available for inspection by authorized U.S. Government officials (e.g., Department of Homeland Security, Department of Labor, Department of Justice).

Notice that it is "must be kept by the employer" and not "destroy and replace."

So I ask again, does the rule against giving advice to commit an illegal act only apply to some but not to others?

Edited April 19, 2012 by aaron2020

[aaron2020 11,651]

Since you are deleting a post "bordering on asking about illegal activity and one quoting same," why did you leave JimVaPhouong's post advising the OP to destroy evidence that materially affect the OP's naturalization?

If the US government ever gets their hands on that form then you could be toast. Talk to your employer and see if you can get them to pull that form and destroy it. As long as that form exists it remains a potential problem for you. It's a potential problem for your employer as well because they signed the form, under penalty of perjury, that you provided documentation proving the status you claimed on the form (US citizen). They even had to list the documents you provided that proved that status. You obviously didn't provide that documentation, which means they didn't comply with the law. It's in everyone's best interest if that form is destroyed.

Here is the citation for the duty to maintain the I-9 record from USCIS; http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=31b3ab0a43b5d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD

Do not file Form I-9 with U.S. Immigrations and Customs Enforcement (ICE) or USCIS. Form I-9 must be kept by the employer either for three years after the date of hire or for one year after employment is terminated, whichever is later. The form must be available for inspection by authorized U.S. Government officials (e.g., Department of Homeland Security, Department of Labor, Department of Justice).

Notice that it is "must be kept by the employer" and not "destroy and replace."

So I ask again, does the rule against giving advice to commit an illegal act only apply to some but not to others?

I find it hypocritical of the moderators to delete posts from some posters who advocate breaking the law but not from other posters.

JimVaPhuong gives very good advice. I have a lot of respect for him. However, JimVaPhuong has on more than one occasion advise destroying the I-9 when an applicant has falsely claimed to be a US citizen. All his posts advocating destroying the I-9 are still up.

http://www.visajourney.com/forums/topic/345161-working-as-a-k1/page__p__5083878__hl__destroy+i-9__fromsearch__1#entry5083878

Posted 04 January 2012 - 01:25 PM

Do you have a copy of the I9 form he signed? This is critical. There are four categories of people authorized to work, and you have to select one of them on the I9 form. These are:

1. A US citizen

2. A US national

3. A permanent resident

4. An alien with work authorization

If box number 1 is checked then it could be a big problem. If that's the case then he needs to get his employer to destroy the I9 form he signed. A false claim of US citizenship could result in someone being barred from the US for the rest of their life.

http://www.visajourney.com/forums/topic/344693-gc-holder-confuse-of-the-process-please-help/page__p__5078627__hl__destroy+i-9__fromsearch__1#entry5078627

Posted 31 December 2011 - 03:58 AM

It's possible they've already sent the first card, which means you'll get two. Destroy the first one and keep the second one.

[aaron2020 11,651]

Overstay and working without authorization can be issues in some adjustment of status cases, but they are specifically not relevant for someone adjusting status as an immediate relative of a US citizen. No waiver is needed.

Claiming to be a US citizen to any immigration officer is an offense that makes the alien inadmissible, and there is no waiver for this. There is an exception if the alien had been in the US since they were 16 years old, if their parents are/were US citizens, and if they reasonably believed that they were also a US citizen. I doubt this exception applies to the OP.

confusedimmigrant, your employer is required to collect the I9 form, but they don't send it to USCIS. They are required to keep it on file. I suggest you speak with your employer's personnel department and see if they can pull your I9 form and allow you to submit a corrected form in it's place. It's unlikely that the form is going to cause you any problems because USCIS likely isn't aware of it, but it remains a potential time bomb as long as it exists.

Even if the OP destroy the I-9, how would you advise her on answering the following question from the naturalization application?

"Have you ever claimed to be a U.S. citizen (in writing or in any other way)?"

Plus, are you advocating destroying adverse evidence where an applicant has made a false claim of US citizenship?