Will my ex-wife be working illegally following our marriage petition withdrawal? (merged)

[Bajinga 136]

she will get a lot of scrutiny during the h1b process itself, EAD will be invalid once the marriage is over. if she works unauthorized and does not tell the employer its highly likely that it will be caught during the h1b processing by USCIS, if so the chances of any work VISA will be nil. Also, unless she got picked in the H1B lottery earlier this year, its too late to obtain an H1B this year unless its a university or a non-profit.

[arken 4,197]

Not sure wat’s OP trying to seek? If my spouse had planned to divorce me in that way to seek her own benefit’s, I would’ve withdrawn the petition on day 1 of the failed “let’s sort it out and reconnect” attempt.

[geowrian 22,338]

Just to clarify a couple points:

1. The EAD is not bound to the petition. It is a benefit obtained via the pending I-485.
   1. Of course, without a petition, there is no basis for the I-485 either. I'm just pointing out that the benefit is due to the I-485, not I-130.
2. The EAD remains valid up until the I-485 is actually denied. The I-485 cannot be approved without a) a valid I-864 from the spouse, or b) a valid underlying petition, but until that denial notice is issued, the EAD remains valid.
   1. So her plan - in theory - can work if the timings line up. Or it could all blow up in her face, both timing-wise and in terms of actually getting the COS approved.
3. The employer has no obligation to keep checking the status of work authorization, except when it expires. CYA applies.
4. I wouldn't focus on the IRS side of things....as long as she pays taxes, the IRS doesn't care. Of course, if she works illegally or overstays, then getting back into legal status becomes more difficult, and misrepresentations have a way of coming out eventually...and they never go away even if you become a citizen.

[Nitas_man 3,100]

9 hours ago, OllieJ said:

Last year my wife and I got married prior to completing our master's degrees (she chose to forgo OPT for the EAD card). She received an expedited EAD card and began working several months ago at a large company, however, this company does not commonly sponsor foreign employees. In the past several months, my wife has said she no longer wants to remain together, wants to put her career first, and solely focus on her ambitions among other reasons. We plan on withdrawing the marriage petition and signing the divorce papers shortly. Currently, we have not yet had our USCIS interview as it's been about 10-11 months since we first submitted the marriage petition.

She has said that she plans on continuing to work at this company until she can get a H1-B visa in a few months. She's said that the EAD card will remain and she's authorized to continue to work despite withdrawing the marriage petition and signing the divorce papers.

Is this realistic? I have read that the EAD is linked to the marriage petition - so I'm unsure what will happen when we do withdraw it.

Is her plan even feasible? Can she still receive OPT? Isn't relying on the H1-B visa risky as its a lottery system?

Withdraw your petition and move forward with your divorce without wasting time and energy worrying about where her choices lead her.  Best of luck to you.

[jumbo mambo 4]

18 hours ago, OllieJ said:

Last year my wife and I got married prior to completing our master's degrees (she chose to forgo OPT for the EAD card). She received an expedited EAD card and began working several months ago at a large company, however, this company does not commonly sponsor foreign employees. In the past several months, my wife has said she no longer wants to remain together, wants to put her career first, and solely focus on her ambitions among other reasons. We plan on withdrawing the marriage petition and signing the divorce papers shortly. Currently, we have not yet had our USCIS interview as it's been about 10-11 months since we first submitted the marriage petition.

She has said that she plans on continuing to work at this company until she can get a H1-B visa in a few months. She's said that the EAD card will remain and she's authorized to continue to work despite withdrawing the marriage petition and signing the divorce papers.

Is this realistic? I have read that the EAD is linked to the marriage petition - so I'm unsure what will happen when we do withdraw it.

Is her plan even feasible? Can she still receive OPT? Isn't relying on the H1-B visa risky as its a lottery system?

what do you care brah..withdraw it and let her go .. she was into her gc and stuff like most fakers .. get rid of her now.... you ll  be happy....

Edited July 17, 2019 by jumbo mambo
missing

[OllieJ 12]

Thanks everyone for help - I really appreciate it. I'm sending in the withdrawal letter tomorrow and signing the divorce papers next week. I'm moving on from this and this is now her problem to figure out.

[arken 4,197]

FYI, you yourself can only withdraw i130 and i864 but not i485. Let USCIS deny/cancel i485 itself after your i130,i864 withdrawal is processed.

[epix_nandos 0]

I think your wife thought she was in the clear once she got her EAD/AP & asked for the divorce. Little did she realize she needed to wait for her cgc to be authorized. 

 

If she had maintained her F1 & working on her Opt Ead, she would have been fine & it might have worked out - she probably thinks both EADs are the same! 

[OllieJ 12]

Update:

 

We agreed that I would withdrawal the I-130 and I-865 and she would withdrawal the I-485. I withdrew the I-130 yesterday and she was suppose to do the I-485, however, she decided not to at the last minute. She instead spoke with her company's lawyer in which he told her that if she withdraws the I-485 she'll lose her work authorization and have to likely leave the country in a month. A long conversation ensued between us in which she said she won't withdraw the the I-485 in order to buy her a month of time for her to apply for the H1B Premium Processing visa application. This premium processing takes USCIS 15 days to decide whether she gets an H1B visa. She is paying her company out of her salary to do this process for her along with the added fees for the premium processing.

 

As of now, the I-485 is listed as "ready to be scheduled for an interview" so I'm unsure as to if USCIS will withdraw the I-485 prior to the interview when they receive the I-130 withdrawal. I'm planning on mailing the I-865 as well, however, she has begged me not to do this because this may cause them to withdraw the I-485 early - not sure if that's true. She was incredibly emotional last night saying that she doesn't think this was the right move for us, she still loves me, she misses me, etc. It seemed manipulative. As context, late last month I left to go visit family for a few weeks when I received a call from her stating that she no longer loved me, not to come home or she will change the locks, and that we are done and to only come home to get my car and move out. I was planning on beginning a new job when I returned but since I was essentially blindsided and left without a home, I had to turn the new job down. To be completely clear, there was no catalyst for this aside from her beginning this new "dream job". We've been together for years and since the moment she took that job, our relationship no longer mattered. She has told me multiple times that her career comes before our relationship. She showed zero empathy or remorse for me so it's hard for me to sympathize with her.

 

I'm planning on sending the I-865 withdraw letter on Monday. Is there anything else I need to watch out for here?

 

Thanks again everyone

[Boiler 46,025]

Sounds she realises she has dug herself in a hole and is now backtracking, but you know this is just a temporary expedient, she made her feelings clear.

[geowrian 22,338]

2 hours ago, OllieJ said:

We agreed that I would withdrawal the I-130 and I-865 and she would withdrawal the I-485. I withdrew the I-130 yesterday and she was suppose to do the I-485, however, she decided not to at the last minute. She instead spoke with her company's lawyer in which he told her that if she withdraws the I-485 she'll lose her work authorization and have to likely leave the country in a month.

With a withdrawn I-130, the I-485 will be denied anyway. Waiting a month won't matter....the time it takes USCIS to recognize the withdrawal (for either form) is all that's left.

 

2 hours ago, OllieJ said:

She is paying her company out of her salary to do this process for her along with the added fees for the premium processing.

Who advised her to do that? This is almost certainly prohibited (except premium processing fees...that is permitted):

https://legalservicesincorporated.com/who-has-to-pay-h-1b-fees-does-an-employer-have-to-pay-h-1b-fees/

Quote

Who has to Pay H-1B Filing and Legal Fees?

For legal fees, the short answer is that the H-1B employer cannot require that an employee pay for or reimburse the employer for attorney fees associated with an H-1B Visa. The rules here are clear and this means that the employer is not permitted to enter in to a side arrangement with the employee to pay back fees and an employer cannot take the amount out of their pay. Employers may however get an employee to pay the legal fees associated with filing an application for the H-1B’s dependent spouse or child. You should keep in mind that the employer is required to sign an attestation in the labor condition application that they paid the fees and that they will not seek reimbursement from the employee.

 

The same rule applies to most filing fees. The H-1B visa has quite extensive filing fees that can amount to over $3,000 depending on the size of the company. Most of these fees cannot be paid by the employee. There is one exception though. If 15-day premium processing is desired, ($1225), this optional fee may generally be paid by either party.

 

2 hours ago, OllieJ said:

I'm planning on sending the I-865 withdraw letter on Monday. Is there anything else I need to watch out for here?

I-864*

The I-865 is for a change of address of a sponsor.

[OllieJ 12]

4 minutes ago, geowrian said:

With a withdrawn I-130, the I-485 will be denied anyway. Waiting a month won't matter....the time it takes USCIS to recognize the withdrawal (for either form) is all that's left.

 

Who advised her to do that? This is almost certainly prohibited (except premium processing fees...that is permitted):

https://legalservicesincorporated.com/who-has-to-pay-h-1b-fees-does-an-employer-have-to-pay-h-1b-fees/

 

I-864*

The I-865 is for a change of address of a sponsor.

Interesting. Thanks for the information. I honestly don't know the specifics and I don't think she even does either. She went about this impulsively since she thought she had the work authorization from the EAD card for a couple years regardless of this marriage petition being withdrawn. So maybe she's just paying the premium processing fees, although I remember she told me the company doesn't sponsor employees because its such a significant legal cost to do.

 

Do you have any idea how long it will take for the I-485 to be denied after USCIS receives the I-130 withdrawal letter?

[Boiler 46,025]

I take it that she works for a non profit?

 

Difficult to make any comment on processing times in individual cases.

[geowrian 22,338]

1 minute ago, OllieJ said:

Interesting. Thanks for the information. I honestly don't know the specifics and I don't think she even does either. She went about this impulsively since she thought she had the work authorization from the EAD card for a couple years regardless of this marriage petition being withdrawn. So maybe she's just paying the premium processing fees, although I remember she told me the company doesn't sponsor employees because its such a significant legal cost to do.

 

Do you have any idea how long it will take for the I-485 to be denied after USCIS receives the I-130 withdrawal letter?

Maybe the company hasn't actually run through the process with their attorney yet...? Who knows...not your issue anymore at least.

 

Once they acknowledge the withdrawal of the I-130 or I-864, the I-485 is usually denied pretty quickly (in immigration timelines) afterwards. The issue is how long it taks to acknowledge the withdrawal, which may be weeks or months. I'm unsure of current processing of those sorts of requests, sorry.

[OllieJ 12]

2 minutes ago, Boiler said:

I take it that she works for a non profit?

 

Difficult to make any comment on processing times in individual cases.

She works at a large financial services firm. I don't believe it would be cap-exempt for the H1B process. Almost certain that it would go into the lottery since this is a corporation unless there are some loopholes.

 

3 minutes ago, geowrian said:

Maybe the company hasn't actually run through the process with their attorney yet...? Who knows...not your issue anymore at least.

 

Once they acknowledge the withdrawal of the I-130 or I-864, the I-485 is usually denied pretty quickly (in immigration timelines) afterwards. The issue is how long it taks to acknowledge the withdrawal, which may be weeks or months. I'm unsure of current processing of those sorts of requests, sorry.

Thanks, appreciate it. You're right, it's not my problem.