Petitioning my father who is in US But working visa has expired

[gil-n-joy 1]

Hello VJers.

I plan to petition my parents as soon as I get my naturalization. I have one concern for my dad though. He entered US legally in 1996 with a valid working visa. However, when his visa expired he continued to stay and work up to present. Now that I can petition him, will it be an issue with USCIS?

[JimVaPhuong 4,863]

Hello VJers.

I plan to petition my parents as soon as I get my naturalization. I have one concern for my dad though. He entered US legally in 1996 with a valid working visa. However, when his visa expired he continued to stay and work up to present. Now that I can petition him, will it be an issue with USCIS?

No. There's a general requirement that adjustment of status applicants must have maintained their non-immigrant status, and must not have worked without authorization, but both of those requirements are waived for immediate relatives of US citizens. This includes parents, spouses, and minor children. As long as your dad isn't inadmissible for any other reason then he should be able to adjust status.

[av8or 34]

Hello VJers.

I plan to petition my parents as soon as I get my naturalization. I have one concern for my dad though. He entered US legally in 1996 with a valid working visa. However, when his visa expired he continued to stay and work up to present. Now that I can petition him, will it be an issue with USCIS?

yes.. tell your dad to stop working while he waits for his legal petition from you.. it is illegal for him to work without legal work autorization which you mentioned has expired.. to continue to do so is a big risk your family should never take.. it could put his application in jeopardy if the uscis finds out he's working illegally..

[av8or 34]

No. There's a general requirement that adjustment of status applicants must have maintained their non-immigrant status, and must not have worked without authorization, but both of those requirements are waived for immediate relatives of US citizens. This includes parents, spouses, and minor children. As long as your dad isn't inadmissible for any other reason then he should be able to adjust status.

adjusting status, yes.. but to continue to work, no.. not until he gets an approval with uscis.. when my wife filed for my initial petition, we also filed an I-766 form (authorization to work).. so i can work while waiting for my gc.. you cannot and must not work unless you get any authorization from uscis.. curious where you got that info that it is ok for his dad to continue working illegally while filing..

Edited January 20, 2013 by av8or

[JimVaPhuong 4,863]

adjusting status, yes.. but to continue to work, no.. not until he gets an approval with uscis.. when my wife filed for my initial petition, we also filed an I-766 form (authorization to work).. so i can work while waiting for my gc.. you cannot and must not work unless you get any authorization from uscis.. curious where you got that info that it is ok for his dad to continue working illegally while filing..

You apparently completely missed the point of the OP's question. She's asking whether the fact that he's worked illegally be an issue with USCIS when she petitions for him. I stated that it will NOT be an issue with USCIS. They won't deny his adjustment of status just because he's been working illegally. I get that directly from INA 245(b)(2):

(2) subject to subsection (k), an alien (

other than an immediate relative as defined in section 201(b)

or a special immigrant described in section 101(a)(27)(H) , (I) , (J) , or (K) ) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States;

This spells out the general requirement that an alien must have maintained their non-immigrant status and must not have worked without authorization in order to be eligible to adjust status, but also clearly indicates that this does not apply to those who are defined as an "immediate relative". If you read the referenced section 201(b) you'll see they are talking about immediate relatives of a US citizen - parent, spouse, or minor child.

USCIS will not deny his adjustment of status because he previously worked without authorization, even if he continues to work without authorization right up until the day of his green card interview. INA 245(b)(2) makes it completely irrelevant.

[av8or 34]

unfortunately, you are trying to interpret something that you read which you have no expertise from.. mine is based from a legal point of view since i went thru almost the same process years ago with a lawyer.. it is you that needs to read up on the op's post more clearly.. the fathers work visa has expired but continues to work to PRESENT DAY.. her question was if it will be a problem.. as i have said AOS is pretty much guaranteed however to continue to work illegally would not stand with uscis and might constitute a problem with the application.. the op needs to file for ead along with aos if she wants her dad to work while waiting approval for gc.. the ead only takes 60 to 90 days approval, while the gc can take up to 6 mos.. op, if you still have doubts, consult a lawyer or google it..

Edited January 21, 2013 by av8or

[av8or 34]

here is a good read op..

http://immigrationissues.wordpress.com/2010/06/18/can-i-work-while-my-green-card-application-is-pending/

Edited January 21, 2013 by av8or

[Asia 2,499]

unfortunately, you are trying to interpret something that you read which you have no expertise from.. mine is based from a legal point of view since i went thru almost the same process years ago with a lawyer.. it is you that needs to read up on the op's post more clearly.. the fathers work visa has expired but continues to work to PRESENT DAY..

But don't you understand that illegal working (working without authorization) is 'forgiven' for USC immediate family (and her father is an immediate family)?

The link you provided isn't an official link, and it doesn't say anything about AOSing as an immediate family of USC.

[av8or 34]

But don't you understand that illegal working (working without authorization) is 'forgiven' for USC immediate family (and her father is an immediate family)?

The link you provided isn't an official link, and it doesn't say anything about AOSing as an immediate family of USC.

were you ever put in the same scenario? did you get your info from a qualified immigration lawyer? or was it all hearsay from members here trying to be experts.. again, forgiven, yes.. but to continue to do so when you are now trying to go legal is frowned upon.. again if anyone has doubts, go ask an immigration lawyer or again just google it.. you'll find links to faq's from lawyers' site.. general info doesn't have to come from an official link.. pls. read my original post.. i am trying to help my fellow "kababayan" on how to go about helping her dad.. stop giving false info that could jeopardize her dads' application..

[Asia 2,499]

were you ever put in the same scenario? did you get your info from a qualified immigration lawyer?

No, it was an info from the official site:

http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-7406.html

Which - I dare to say - is above what the lawyer is saying.

There are many 'immigration' lawyers who are masters in taking money from oblivious (uneducated in immigration process) people. Not saying yours was like that, but not every lawyer is a good one.

[av8or 34]

No, it was an info from the official site:

http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-7406.html

Which - I dare to say - is above what the lawyer is saying.

There are many 'immigration' lawyers who are masters in taking money from oblivious (uneducated in immigration process) people. Not saying yours was like that, but not every lawyer is a good one.

. .. Pls read S-l-o-w-l-y and try to understand post #4.. Ok?

[Asia 2,499]

. .. Pls read S-l-o-w-l-y and try to understand post #4.. Ok?

I read that post very S-L-O-W-L-Y and still I don't see any official rules to this case.

Just because your lawyer told you that you can't work while waiting for the authorization (and while being an IR to the USC), it doesn't make it an official law. Sorry.

Edited January 22, 2013 by Asia

[av8or 34]

Just because your lawyer told you that you can't work while waiting for the authorization (and while being an IR to the USC), it doesn't make it an official law. Sorry.

and just because you said it's ok, certainly doesn't make it right.. sorry, but if i had to take an advice between YOU and a laywer "trained" in this field, i'd spend the extra $$ and CHOOSE him anytime, ALL THE TIME.. (OH BTW, THAT IS THE LAW)..

[Asia 2,499]

and just because you said it's ok, certainly doesn't make it right.. sorry, but if i had to take an advice between YOU and a laywer "trained" in this field, i'd spend the extra $$ and CHOOSE him anytime, ALL THE TIME.. (OH BTW, THAT IS THE LAW)..

Good.

People can take advice from whoever they want.

This site was created to give people some options and to let them educate themselves in their immigration processes.

[gil-n-joy 1]

Hey guys,

First of all thank you for taking time to respond to my query.

I understand that lawyers' opinion on the matter would be to play it safe and they would advice to stop working while the GC application is ongoing. While I respect the professionals' opinion on the matter, I am aware that these opinions among professionals may differ (the same way doctors' opinions can differ).

Of course, the ideal way to go is to present a clean case so that approval of AOS is certain. However, since my dad is the breadwinner of our family in the Philippines, quitting his job is going to be difficult. He has a legal SS number, a driver's license and has been paying his taxes faithfully. He even has acquired official certifications and credentials for his job. We are hoping that his good standing would give us a better chance for USCIS to pardon him and grant adjustment of status via my petition. The INA Act 245 somehow gives me that flicker of hope albeit I know we are treading a risky path if indeed we misinterpret the meaning or intention of the document. And that is why I am thankful for any opinion or information I can assess before proceeding.

So my questions about this INA Act 245 are these:

What is the background of this Act?

Do you know of any precedent decisions or anybody who has used the contents of this Act in their request for pardon maybe?