AOS Denied because of Unauthorized employment

[John Wick 0]

One of my friend got married to a green card holder. He did some work which can be classified as unauthorized by USCIS such as Uber and Day 1 CPT. He has already filed for i130/ i485/ i765 (F2A is current). What will happen if the IO denies his change of status? Can he file the case again and start from scratch or something else. What is the best option for him as of now. 

[geowrian 22,337]

If denied (unauthorized employment is not ignored in his case so he is ineligible for AOS), he will accrue unlawful presence. he may or may not be issued an Notice To Appear (NTA) for removal proceedings with the denial, or it may come later. He can refile, but it would be pointless because he would still be ineligible for AOS for both the same reason plus the overstay.

https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-6

 

Best thing would be to leave the US sooner rather than later. He can obtain an immigrant visa abroad still - unauthorized employment is not an issue for the immigrant visa.

 

If he has accrued under 180 days of unlawful presence (unlawful presence does not accrue while AOS is pending), then there is no bar to worry about. If he accrued 180+ days of unlawful presence before filing for AOS, then he will have a 3 or 10 year bar (10 year bar starts at 1 year of overstay) that can be waived.

An I-601 can waive the bar.

An I-601A can apply instead if the I-130 is already approved and he is still in the US, and he has no other inadmissibilities.

[John Wick 0]

Thanks for the response, Geowrian. I have a few follow up questions. 

 

1. Once AOS is denied, can he apply again once his wife becomes a US Citizen? From what I know, a spouse of US Citizen is except from any consequence unauthorized stay.

 

2. What will happen to the work authorization once AOS is denied?

 

3. What will happen to work authorization if we apply again after the AOS is denied (wife is still LPR)? Will it be approved or rejected based on previous filing?

 

4. Are there any special requirements to be met to get approval for i-601/ i601A?

 

 

[geowrian 22,337]

29 minutes ago, John Wick said:

1. Once AOS is denied, can he apply again once his wife becomes a US Citizen? From what I know, a spouse of US Citizen is except from any consequence unauthorized stay.

 

2. What will happen to the work authorization once AOS is denied?

 

3. What will happen to work authorization if we apply again after the AOS is denied (wife is still LPR)? Will it be approved or rejected based on previous filing?

 

4. Are there any special requirements to be met to get approval for i-601/ i601A?

1) Yes, although there are potential issues with waiting for this. One, he might get put into removal proceedings first. Second, his wife will need to disclose his (lack of) status on the N-400 when they apply for naturalization (it explicitly asks about your spouse's immigration status and current address). This can technically be considered harboring an illegal alien, although others have had success as well. Just know that there is risk and nobody on this site can advise or condone overstaying as it is a violation of the TOS.

 

2) If the I-485 is denied then any benefits obtained due to it are automatically revoked, including the EAD and AP. So no work authorization.

 

3) If a properly filed I-485 is made, they can apply for a new EAD to work. But note again that there is no valid basis to file for AOS here as they are clearly ineligible. Also see my note below...

 

4) It needs a qualifying relative (his LPR wife is one) and an "extreme hardship", which is a very broad set of circumstances. A well presented I-601 is often approved IMO, and especially a well presented I-601A. Although this is where I recommend an immigration attorney that handles waivers.

 

NOTE: Just to be clear - USCIS has a policy in place to issue an NTA when AOS is denied due to ineligability. Once an NTA is issued, you cannot file for AOS with USCIS anymore - you have to go through the immigration court system at that point.

Edited October 26, 2019 by geowrian

[John Wick 0]

Thanks for the response again, Geowrian. One more follow up question. 

 

What if he maintains his F1 Students status till a decision is made on his AOS? If the AOS is denied, he can still fall back on his F1 status, right? This way he can avoid any removal proceedings.

[geowrian 22,337]

2 hours ago, John Wick said:

Thanks for the response again, Geowrian. One more follow up question. 

 

What if he maintains his F1 Students status till a decision is made on his AOS? If the AOS is denied, he can still fall back on his F1 status, right? This way he can avoid any removal proceedings.

If he maintains F1 (or any other) status, then there's no issue. If AOS is denied, they maintain their current status. Although I would note that getting the visa renewed when it expires is difficult as it requires showing non-immigrant intent again...which is hard when you recently filed to become an immigrant.

Also note that maintaining F1 status means they cannot use any benefits not included with their F1 status - namely the EAD or AP. Once he uses either of those, he no longer will hold F1 status and will only hold the authorized stay from the pending I-485.

[John Wick 0]

Thanks Geowrian for answering the questions. I have one more hypothetical question for you. Let's say that AOS was denied because of unauthorized employment and my friend had to leave the country.

1. Which non-immigrant visa can he use to come back to US?

2. If he enters US, he would still be ineligible for AOS, right? If his wife is still on LPR?

 

Thanks again for responding to my queries. 

[aaron2020 11,651]

4 minutes ago, John Wick said:

Thanks Geowrian for answering the questions. I have one more hypothetical question for you. Let's say that AOS was denied because of unauthorized employment and my friend had to leave the country.

1. Which non-immigrant visa can he use to come back to US?

2. If he enters US, he would still be ineligible for AOS, right? If his wife is still on LPR?

 

Thanks again for responding to my queries. 

1.  With immigrant intent by filing for AOS, there is little to no chance of getting a non-immigrant visa to come back to the US.

2.  He's not coming back without an immigrant visa.  

[geowrian 22,337]

1 minute ago, John Wick said:

Thanks Geowrian for answering the questions. I have one more hypothetical question for you. Let's say that AOS was denied because of unauthorized employment and my friend had to leave the country.

1. Which non-immigrant visa can he use to come back to US?

2. If he enters US, he would still be ineligible for AOS, right? If his wife is still on LPR?

 

Thanks again for responding to my queries. 

1) Without a ban, he can qualify for any visa of which he is eligible. That said, any visa that prohibits immigrant intent  (most non-immigrant visas fall under this) would be unlikely to be granted. Work visas like an H-1B, L visas (intra-company transfer), O-1 (extraordinary ability), etc. are the more common ones that permit immigrant intent despite being non-immigrant visas. Any other visa would almost certainly be denied due to immigrant intent.

 

2) If the PD is current, he remains in status, and does not violate status, then AOS is possible. The prior violation would not be a bar.

But note again that he needs a visa that permits immigrant intent to enter with intent to apply for AOS.

It makes more sense to wait out the immigrant visa abroad.

[John Wick 0]

Thanks guys. Few more follow up questions. 

 

1. After the AOS is denied because of unauthorized work and he leaves the country. Can't his wife apply for his green card (wife is LPR)? If the priority date is current, it should take about 1 year. Would unauthorized stay less than 180 days or unauthorized work create a problem here in any way?