Got Married to my wife who overstayed - Have a few questions

[mrjones 0]

Ok here's the quick story. I have been together with my girlfriend for 4 years. We got married earlier this month! She is on a 10 year tourist visa from the Philippines that she came on in 2003 and overstayed until now. I met her in the beginning of 2007. We have pictures and proof its a bonafide marriage etc. She had been employed and paid taxes but some loved ones still work for the same employer that are out of status. My wife had done the PERM and an I140 that got approved in 2006-2007, but never filed an I485 yet. She has her old passport with the stamp when she arrived and the VISA but has lost the I94. I filled out all the forms MYSELF......The I765, I485, I130, and I864. We have all the other supporting documents besides the I94. So here are my questions! And thanks everyone for the quick responses.

1) Is filling out an I102 for an I94 COMPLETELY necessary or will the IO accept the passport stamp along with VISA as proof of legal inspected entry?

2) Will they look into the employer after the interview she worked for because they would of known they hired her out of status?

3) From what I read the PERM and I140 filed and sitting at USCIS wont affect a brand new request based on our marriage, especially since no I485 has been filed.

4) Is a lawyer to fill out these forms COMPLETELY necessary in this case. The forms are complicated, but yet seem simple enough to complete on my own.

Everyone thanks for the advice and let me know ASAP!!!!

Edited January 22, 2011 by lcgperfume

[JimVaPhuong 4,863]

1) Is filling out an I102 for an I94 COMPLETELY necessary or will the IO accept the passport stamp along with VISA as proof of legal inspected entry?

Hard to say. Some people have been able to adjust status without an I-94, but this has mostly worked for Canadians who didn't get an I-94 when they entered. Most people who actually got an I-94 have been required to submit a copy of it, and then hand it over at the interview. A few VJ members have gotten RFE's for it, and haven't been able to get the replacement copy in time to respond to the RFE.

I'd play it safe and get the replacement I-94.

2) Will they look into the employer after the interview she worked for because they would of known they hired her out of status?

Again, hard to say. It's definitely possible, but USCIS doesn't always take action even when they know there's been a violation.

3) From what I read the PERM and I140 filed and sitting at USCIS wont affect a brand new request based on our marriage, especially since no I485 has been filed.

Shouldn't have any effect.

4) Is a lawyer to fill out these forms COMPLETELY necessary in this case. The forms are complicated, but yet seem simple enough to complete on my own.

I don't see why a lawyer would be necessary in this case. If you can read and follow instructions then you should be able to handle it. This is bureaucratic process - not a legal process.

[mrjones 0]

Also to add this detail which Im reading now will complicate things.

She worked for the same place for the last 7 years. About 4 years ago they sponsered her and got an I140 approved. Now she never submitted false document to them, but they have been paying her by check under someone elses SSN with taxes being paid. We got married earlier this month after a 3.5 year relationship. 100% bonafide etc etc. Of course I am telling the truth on the G325 all the way about her employment. So when they ask about it at the interview what should we say and will she have to pay taxes AGAIN!!!! Will we be able to work that out after the interview with the IRS. Please advise and lots of thanks.

[Harpa Timsah 13,258]

Using someone else's SSN (presumably a US Citizen) is a serious offense that will lead to a lifetime, non-waiverable ban. It also sounds like tax evasion, and possibly some other issues. I would say now you need a lawyer.

Edited January 22, 2011 by Harpa Timsah

[JimVaPhuong 4,863]

Also to add this detail which Im reading now will complicate things.

She worked for the same place for the last 7 years. About 4 years ago they sponsered her and got an I140 approved. Now she never submitted false document to them, but they have been paying her by check under someone elses SSN with taxes being paid. We got married earlier this month after a 3.5 year relationship. 100% bonafide etc etc. Of course I am telling the truth on the G325 all the way about her employment. So when they ask about it at the interview what should we say and will she have to pay taxes AGAIN!!!! Will we be able to work that out after the interview with the IRS. Please advise and lots of thanks.

There are a whole assortment of crimes this could be classified as, depending on whether she submitted an I-9 with the Social Security number on it, and whether she knew the number belonged to someone else, etc. The possible crimes run the gamut from providing false information, fraud, aggravated identity theft, criminal impersonation, and more.

This isn't something you can sweep under the rug with a revised tax filing, or that would be overlooked or 'forgiven' by adjusting status. There's a good chance she's deportable because of this, and if she's deportable then she can't adjust status.

You should consult with several attorneys before you go any further. Don't just consult with one. A certain percentage of immigration attorneys will always tell you they can succeed, even if they know damn well they can't, just to get you to pay them. In fact, they'll read you all kinds of horror stories just to convince you that you can't do it without them so that they can charge you even more.

[mrjones 0]

No no.....The company did something, but they paid the taxes. She never signed an I9 or did anything with anyones social. They paid her the net cash at the end with the taxes taken out. She didnt falisfy anyones SSN number. That is different I assume. She never assumed anyones social number to pay taxes or secure employment.

Edited January 23, 2011 by mrjones

[mrjones 0]

I think what I am asking is even thought the company stated they with held taxes and paid her NET CASH. Her Salary-Taxes she will still have to file taxes on the net earning because she cant prove that they paid any sort of taxes, right? Will she have to file amended returns before the interview. I was assuming thats how they did it in a previous post, but she has no way of knowing. She just knows she got he money with the itemized deductions? Maybe they pocketed the money. I have no idea? Is the best thing to bit the bullet and pay taxes on the net cash she took in?! ALso does she have to do that before the interview, or will they allow her to adjust, and then we can fix the IRS bill?

Thanks again for all the help

[JimVaPhuong 4,863]

I think what I am asking is even thought the company stated they with held taxes and paid her NET CASH. Her Salary-Taxes she will still have to file taxes on the net earning because she cant prove that they paid any sort of taxes, right? Will she have to file amended returns before the interview. I was assuming thats how they did it in a previous post, but she has no way of knowing. She just knows she got he money with the itemized deductions? Maybe they pocketed the money. I have no idea? Is the best thing to bit the bullet and pay taxes on the net cash she took in?! ALso does she have to do that before the interview, or will they allow her to adjust, and then we can fix the IRS bill?

Thanks again for all the help

Did she file any tax returns? If so, what Social Security number did she use?

[mrjones 0]

No she did not, because she doesnt have a SSN and she wasnt thinking and thought that because the company deducted them she was OK. So, Im assuming we are just going to have to bite the bullet and just assume they screwed her. Will we need to file these amended returns before the interview? Also how can we file them? We are married now, and of course doesnt get an SSN until the EA

Edited January 23, 2011 by mrjones

[JimVaPhuong 4,863]

No she did not, because she doesnt have a SSN and she wasnt thinking and thought that because the company deducted them she was OK. So, Im assuming we are just going to have to bite the bullet and just assume they screwed her. Will we need to file these amended returns before the interview? Also how can we file them? We are married now, and of course doesnt get an SSN until the EAD comes.

Larry

An amended return is a return that makes changes to a previously filed return. If she never filed a return then, as far as the IRS is concerned, she never paid any taxes. She would need to file complete returns, one for each year.

If she was totally unaware that the company was withholding income and payroll taxes using somebody else's Social Security number then she's probably in the clear as far as fraud or identity theft, but her employer could get into big trouble over this. If she was aware of it then she may be equally guilty.

She can't file a tax return without a valid SSN or ITIN. If she uses the same SSN her employer used then the IRS might accept the return, but she'd be guilty of fraud. If she files with her own SSN or ITIN, and claims the taxes were withheld from her paycheck, then the IRS probably won't accept it because the SSN or ITIN won't match any of the numbers the employer provided with their quarterly tax payments. Assuming she knew absolutely nothing about her employer's use of a fraudulent SSN, then she could probably file a return on the net pay and she'd be responsible for the full taxes on that pay. I'm not sure because I'm no tax expert. This could get really messy if the federal government confronts her employer about this and they claim that she gave them the SSN when she started working there.

You really should consult with several attorneys about this. In addition to immigration attorneys, you should probably consult with some tax attorneys.