Petitioning my father - overstayed, expired work authorization

[gil-n-joy 1]

Hi. This is my scenario.

Petitioner: me, over 21 yrs old, naturalized citizen

Beneficiary: father, entered legally with work visa, overstayed & subsequently worked without authorization

Questions:

Should I file I-130 and I-485 filed at same time?

Is there a need to file inadmissibility waiver? If yes, is it AFTER submission of I-130 & I-485?

I know overstaying for immediate relative is forgiven, but is working without authorization also forgiven? Will USCIS inquire how parent was able to work and investigate if he misrepresented himself as citizen to get a job?

Is a lawyer necessary here? (I honestly don't trust immigration lawyers anymore)

[aaron2020 11,651]

Misrepresenting that he's a US citizen is never forgiven. It's automatic denial.

You may want to rethink going alone without a lawyer when this level of mispresentation is involved.

[Hypnos 6,576]

If he has ever falsely claimed to be a US citizen to any federal or state agency (DMV, Social Security, on an I-9, etc.) then this carries a lifetime bar from the US with no waiver.

You should consult an excellent attorney, ideally several, but don't get your hopes up.

[newacct 688]

From reading the OP's post, I don't think the OP is saying his father misrepresented himself. I think he is asking whether USCIS will investigate how he worked and whether his father misrepresented himself.

[Hypnos 6,576]

Yes, they can investigate. Will they in this case? There's no way to tell, but if he has misrepresented himself as a US citizen but on his forms states that he has not, that's another count of misrepresentation there.

It's a pretty simple question of: has the father ever falsely misrepresented himself as a US citizen to any state or federal agency? If no then he's good to file AoS, if yes then find a fantastic attorney, but don't get your hopes up.

[gil-n-joy 1]

From reading the OP's post, I don't think the OP is saying his father misrepresented himself. I think he is asking whether USCIS will investigate how he worked and whether his father misrepresented himself.

Thank you. That is exactly the intent of my question. I already know misrepresentation doesn't have a waiver. However, given other people's experience where they have overstayed and worked without authorization and still gets approved, I wonder if unauthorized work is also forgiven (or at least not further investigated). After all, in general, one can't get work if they admit outright they're not authorized, right? So somewhere along the way they do something to get around that to be able to work. But with an SS number (as in the case of my dad), some employers don't mind asking about citizenship anymore.

I understand of course it can go either way. I just want to hear of experiences of similar situations. I really don't need to hear anymore about lifetime ban or getting really good lawyers. I already know that and we all know we don't want that. A more useful advice would be greatly appreciated.

Edited May 11, 2013 by gil-n-joy

[Hypnos 6,576]

Working without authorisation is not penalised for an immediate relative of a US citizen when filing for adjustment of status. Tax evasion is not forgiven though, so even if working illegally he would need to have paid taxes on his earnings.

I have read of cases where an IO has asked, "Have you ever claimed to be a US citizen?", to which the interviewee usually says "No", and then the IO produces some document that they have found where the alien has done exactly that. Maybe this is an I-9, maybe it's an old driver's license application. At the same time I'me sure there are others who have done it and got away with it, although should that ever come to light they could have serious issues. USCIS can reverse any decision they have made if it is based on false information, up to and including revoking citizenship. It's not easy for them to do this, and you can certainly challenge it in court, but it's always on the table.

It seems as if you are dancing around the question (of whether your father has ever misrepresented himself as a US citizen) and want someone here to say, "Yes, my father / mother / spouse made a false claim of US citizenship but still received a green card". I'm sure that's happened, but if it did ever come to light for any reason whatsoever then that person could have big problems, up to and including deportation.

There are certain exceptions with regards to a false claim of citizenship; claims made before 1986, for example, do not give this lifetime ban, and there are a couple of other narrow exemptions too. Perhaps these would be worth investigating.

Edited May 11, 2013 by Hypnos

[gil-n-joy 1]

Working without authorisation is not penalised for an immediate relative of a US citizen when filing for adjustment of status. Tax evasion is not forgiven though, so even if working illegally he would need to have paid taxes on his earnings.

I have read of cases where an IO has asked, "Have you ever claimed to be a US citizen?", to which the interviewee usually says "No", and then the IO produces some document that they have found where the alien has done exactly that. Maybe this is an I-9, maybe it's an old driver's license application. At the same time I'me sure there are others who have done it and got away with it, although should that ever come to light they could have serious issues. USCIS can reverse any decision they have made if it is based on false information, up to and including revoking citizenship. It's not easy for them to do this, and you can certainly challenge it in court, but it's always on the table.

It seems as if you are dancing around the question (of whether your father has ever misrepresented himself as a US citizen) and want someone here to say, "Yes, my father / mother / spouse made a false claim of US citizenship but still received a green card". I'm sure that's happened, but if it did ever come to light for any reason whatsoever then that person could have big problems, up to and including deportation.

There are certain exceptions with regards to a false claim of citizenship; claims made before 1986, for example, do not give this lifetime ban, and there are a couple of other narrow exemptions too. Perhaps these would be worth investigating.

Thank you. Thank goodness tax evasion is not a problem in our case. It's just that from reading about other people's cases, it seems that misrepresentation about citizenship when entering illegally seem to have greater gravity than probably lying about it to get a job. Technically both are misrepresentation that USCIS can easily penalized lifetime ban as prescribed by law. That is why I am more interested to assess similar cases and find a common denominator. To me, it seems that for those who enter legally and are immediate relatives, the USCIS MIGHT just be more forgiving. It is hope against hope. But when you talk about "other narrow exemptions" and others who for sure have gotten away with it, I try to assess the probability of leniency towards approval.

[Icefire 0]

Hi guys,

If there's no misrepresentation as a US citizen, in this case, will a waiver be needed for I-130/I-485 concurrent filing? I'm in the process of adjusting my dad's status here and I am a US citizen. He entered legally as a visitor and overstayed. Although he worked without a permit, he has never committed any fraud, such as faking a SSN or misrepresenting himself as a USC. He just worked in a private home and got paid cash. He has been paying his taxes with an ITIN number as a nonresident alien. So my question is, will he need a waiver like I-601 for his I-485 application? Can we just submit his application without any waiver(s)? Many thanks in advance!!!

[Hypnos 6,576]

It's usually best to post your own thread when asking a new question...

...but no, your father will need no waiver, just file for his AoS in the normal way.

[NigeriaorBust 4,087]

To work he used a social security card or under the table ? If he used a card was that card the SS number of a USC ( false claim to USC ) or not ?

[Icefire 0]

Thanks for the quick replies! My dad never had a SSN, he just worked under the table, but as I mentioned, he has been paying taxes as a foreign person. I would love to start my own thread on this forum, but I couldn't figure out a way to do it.... Please pardon my incompetence . How do I post my own question?

[Icefire 0]

Never mind my question about how to start my own thread. I finally figured it out - you have to choose the category of topic that you are interested in before you can start your own topic. Thanks for all your help!

[gil-n-joy 1]

To work he used a social security card or under the table ? If he used a card was that card the SS number of a USC ( false claim to USC ) or not ?

He entered US with work visa so he has legally acquired a Social Security number.

[Boiler 45,519]

As an aside under Obama's amnesty plan millions who have worked illegally will benefit.