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merrin · Jan 24, 2011, 11:50 PM

I was granted a cpt, which lapsed, and my school refused to renew it. I have worked without authorization for sometime now, and am going to get married soon. I plan to submit the paperwork to get the green card through marriage, and I am IN status, so my question is, how tricky is my situation? Does anybody have any experience with this, and how risky is it?

NYcityboy · Jan 25, 2011, 12:27 AM

You still have a valid SEVIS I-20?

merrin · Jan 25, 2011, 12:28 AM

Yes

NYcityboy · Jan 25, 2011, 12:32 AM

Good, is your spouse a USC? Have you otherwise violated your status (other than the unauthorized employment)?

Please answer, do not comment, to my posting.

merrin · Jan 25, 2011, 06:03 AM

He isn't a citizen, he's on an employment based EAD/ Travel permit as of now, and wants to file anew under some other category once we get married. I haven't had any violatoions other than this, I've been completely in status right throughout. (Always had valid reason for my stay in the US)

NYcityboy · Jan 25, 2011, 06:45 AM

From your post, he is now an applicant for EB PR and unmarried and you will not be adjusting status with him. He will be applying for you after he has permanent residence status? Please note that the USCIS calls your situation "facially valid status." this means that document wise, you have no violation. Unfortunately, you do have a status violation, which must be disclosed on your application for PR, specifically, the I-485 and the G-325. Remember, these forms are signed under penalty of perjury.

From the little information provided; neither of these will work for you. The unauthorized employment is only waived under section 245(a) for the spouse of a USC, not for either (1) dependent applicant or (2) spouse of LPR.

If your spouse get PR, then citizenship, the violation is waived as noted above.

If you cannot adjust with your spouse, see if you qualify on your own and you can possibly adjust under section 245(k), employment based which forgives up to 180 days of unauthorized employment.

Consult with an experienced immigration attorney.

merrin · Jan 25, 2011, 08:22 AM

No, he will be adjusting his status after he marries me. He is going to refile since he has 5 years of experience in his field, which qualifies him for a faster GC, so he is waiting until we marry to reapply.

merrin · Jan 25, 2011, 08:35 AM

Also, do I have to provide my tax records?

NYcityboy · Jan 25, 2011, 12:01 PM

Originally Posted by merrin

No, he will be adjusting his status after he marries me. He is going to refile since he has 5 years of experience in his field, which qualifies him for a faster GC, so he is waiting until we marry to reapply.

That's good for him. He is moving from EB-3 to EB-2, which is current for most countries as of the February 2011 DOS visa bulletin. How much time of unauthorized employment? if less than 180 days, you may qualify for the waiver of that status violation under section 245(k). Confirm with an experienced immigration attorney that it applies to dependent AOS applicants and not just the AOS principal.

if more than 180 days of unauthorized employment, you will not be eligible to adjust with him. You are ineligible for adjustment of status with that status violation. This violation is not waived in your case. (1) it does not apply to the spouse of an LPR, and (2) he is not an LPR, he is an applicant for PR.

If that is the case, then after he is an LPR, and after you marry; you will need to leave the US and apply for the IV with the I-601 waiver, which is dependent on the hardship to your LPR husband and any USC children. Of course, a longer option is to wait for his naturalization, which would then qualify you for AOS and the waiver under section 245(I).

Confirm this with an experienced immigration attorney. Not many will have any experience on these issues. Check with AILA for a referral in your area.

NYcityboy · Jan 25, 2011, 12:02 PM

Originally Posted by merrin

also, do I have to provide my tax records?

No, dependent tax filings are not required. Your husband must prove up he makes 125% over the HHS poverty guideline for your family size, of 2? Check the I-864P for the exact dollar amount of required annual salary.

merrin · Jan 25, 2011, 02:24 PM

Thanks NYCityBoy! This is helpful info. The hubby to be indeed does make over the amount needed. I hope this is my final question, but if I get my cpt reinstated again, would that at least look better?

NYcityboy · Jan 25, 2011, 06:56 PM

Yes, always looks better to have valid EAD when filing.