Options for F-1 or H-2A holder when petitioner subject to AWA

[M1336 0]

Hi VisaJourney members. I've read the Guides and searched the forums, but have not found exactly what I'm looking for. I also wasn't sure whether to post this in IMBRA Special Topics or in Adjustment of Status from Work, Student, and Tourist Visas.

Firstly, I want to make sure that I have a correct basic understanding of the process involved with an F-1 or an H-2A, after reading other people's posts. Please correct any false ideas that you see in my descriptions of the processes.

Seconly, I have some questions regarding an F-1 or H-2A visa holder's options and limitations, when she is attending college or working in the United States and marries her American (U.S. citizen) boyfriend who has a conviction for a sexual offense against a minor. The boyfriend had disclosed his criminal record to her many years ago, once their relationship started to turn serious. She stayed with him despite the conviction, seeing that he has fully redeemed himself, is not a harm to anyone, and loves her deeply.

I will present two imaginary scenarios that have some parallels to my real life. Imagine a young lady from Philippines who has not been able to go to college yet. She is eager to come to the United States to go to college or to find a job. She is an unskilled worker, so she would certainly not be eligible for an H-1B visa. She has no close relatives in the USA and is therefore not eligible for any family-based visa unless she were to marry an American.

She could come to the USA, temporarily, on an F-1 student visa, or on an H-2A or H-2B work visa. Any of these visas would require demonstation of non-immigrant intent during the consular interview. That is, she should not indicate any desire of wanting to attend college or wanting to take the temporary job merely as a way to stay in the country permanently and illegally.

Let's pretend that she is attending a college in Massachusetts on an F-1 student visa. My understanding is that she would have applied to enroll as an international student. She would have presented proof of financial resources (either her own, or in combination with money from family and friends) to afford tuition and other expenses – probably well in excess of $10,000. The college would have then helped her to apply for the student visa. Once here, she could not switch to another college or drop out, and she could not work, except for limited hours engaging in work that is related to her field of study, with permission from the college and from USCIS.

So she comes here, starts school, and meets a handsome American student (a U.S. citizen) in one of her classes. He finds her absolutely gorgeous. They start dating. They fall deeply in love. Let's say they're young at heart and foolish, and after a few months of passionate romance, they marry each other.

Normally she can apply for Adjustment of Status, even though she came here on a student visa. Once she applies for Adjustment of Status, she cannot leave the country unless she also applies for, and is approved for, Advanced Parole. If she leaves without A.O.S. and AP, and tries to come back on her F-1 with intention to file for A.O.S., that is visa fraud, correct?

Alternate hypothetical case: Let's say that, instead of attending a college in Boston, she applied for a seasonal job and she's working on a farm in Alabama. The company would have petitioned for her H-2A visa. After USCIS approved the company's petition, she would have gone for an interview at the U.S. Embassy in Manila. When she secured her H-2A visa, she would have flown from Philippines to Alabama and started working on the farm. Once here, she could not change jobs and could not stop working until the visa expiration time specified on the company's labor certification. If she abandoned her job, she would be out of status and would be deported once the authorities caught up with her.

Let's imagine that, while working on the Alabama farm, she meets a handsome American man (a U.S. citizen) who finds her irresistible. Let's say that the two of them start talking, meet one another off work hours, and after a few weeks of dating, they fall madly in love. Before her work visa expires – before she returns to Philippines – they marry each other.

Just as in the first scenario, normally she can apply for Adjustment of Status, but once she does so, she must remain in the country until she has the CR-1 visa, or approved Advance Parole. She cannot return to Philippines without filing for A.O.S. and, later, try to come back to the U.S. on an H-2A with intention of filing for A.O.S., as that is visa fraud.

Could she could marry in the U.S. while on the student or work visa, not file for Adjustment of Status, return to Philippines, have her spouse file the I-130 petition on her behalf, and proceed with consular processing for the CR-1? Would this mean that she could not come back to the U.S. on a student or work visa, from that point forward?

Now to throw a wrench into the normal visa petition process: As stated before, the man has a criminal record for a sexual offense against a minor, more than 20 years ago, when he was a teenager. This offense was the only time he has ever been in trouble with the law. Even if his offense predated SORNA or he was deemed to be low risk and is not on any sex offender registry, and even if he has lived as a model citizen for more than 20 years, he would still be subject to the eternally-retroactive Adam Walsh Act. This would apply regardless of how long ago his one conviction was, even if it happened 50 years ago and he has not broken any laws since. Would this cause the Filipina lady to be ineligible for a CR-1 visa and require her to leave the country when her temporary visa expired, because her U.S. citizen spouse could not legally petition for any family-based visa on her behalf (at least, not without the extremely-high burden of securing an AWA waiver)?

My educated guess is as follows. Please correct me if I'm wrong!

I would think yes, she would be ineligible for any family-based visa with him, unless he met the immense threshold of evidence required for an AWA waiver, that he presented no risk to her or to any future children of theirs. Sure, they could marry each other, but without an AWA waiver, he could not petition for a CR-1 on her behalf. Accordingly, she could not file for Adjustment of Status, and she would have to return to Philippines upon the expiration of her F-1 or H-2A.

Likewise, any K-type visa would face the same enormous hurdle of requiring an AWA waiver. In all practicality, and as much as she loved her boyfriend, she would essentially need to marry another U.S. citizen without a criminal record in order to apply for a K-type visa – unless they were willing to spend thousands of dollars for a competent immigration attorney familiar with AWA, on top of the regular immigration-related expenses, and with no promise of success.

I understand that there are several ways that she could pursue an employment-based green card. Once she completed college, had skills in high demand, and could apply for an H1, L1, or EB-type visa, any of these could be a path to a green card, correct?

Thanks in advance!

Edited September 6, 2014 by M1336