FlightRisk

I need the definitive answer as so far it is very gray. She is on a J2 visa and divorcing the J1 spouse (no 2YRR) and has a SS#, EAD and a job. We really need her to keep that job and it would be a major inconvenience to her employer to not have her and have to lose the money to train her and pay to train someone else. Technically, it appears that because INS chooses to delay EAD's for 3 months, she would have to quit her job and then find another one after the new EAD is granted.

She entered legally over 6 months ago for the second time on this visa (she went back home for a visit), but because she is getting divorced, and because she will be out of status during the time it takes to get divorced, re-married, and file the AOS paperwork, I am wondering what the issues could be with our application.

For example, they could question if she entered knowing she was going to get divorced and try to question how she entered on the J2 the last time, or the out of status for 30 days between divorce, marriage and filing, and the having to continue to work for 90 days or so from the divorce date until the new EAD comes in. There is a line on the I-130 that asks her to list any job and date started. So it would be right there on the form. The start date would obviously be while under a valid EAD. And there is nothing that would flag whether she quit and went back to work there or just stayed in the job the whole time. Am I worrying too much about a trivial thing? We really have no choice, she can't quit that job, but I would like some peace of mind about proceeding.

FR

Rete

I'm not an attorney but I would assume that her EAD is based on her status as a J2. If she is no longer a J2, then reason would tell me that she is no longer authorized to work by the INS. However, if she were to continue to work unauthorized and then marries a USC and obtains a new EAD based on her filing for adjustment of status, the time period between the lapse of authorization is generally forgiven by the INS for persons married to US citizens. The people who will bear the blunt of her unauthorized work would be her employers.

Rete

FlightRisk

What do you mean "bear the brunt of...". Are you saying that for something like this, they forgive the spouse of a USC, but then go out of their way to find an employer, who wouldn't even know and do something to them?

FR

Rete

They don't have to go out and find them now do they. If she is working illegally and places that fact on the G-325A which she is required to do otherwise it is a case of fraud, then the INS knows who her employer is/was when she was working without authorization. If they want to, the employer can be fined for employing an unauthorized alien.

Rete

FlightRisk

"Go out and find them" is a figure of speech just as "go knock on their door". I'm sure they would probably use a telephone. I wish I could get concrete answers here on the board, but without paying for expert advice from attorneys who may have already seen several examples of this situation, people like me with a complicated situation have to do with the general "gut feeling" of other people who really don't know. It would be nice to hear, "there is no way to risk it, you have a 80% chance of this being a problem", or "you are nitpicking, this is just not something they worry about, it could only be an issue if you get the wrong person that day looking over your paperwork".

Can an attorney jump in? Can I pay you by the half hour to just answer about 30 minutes worth of questions in 2 or 3 calls as I go through this process? Thank you.

FR

robclews

The answer is simple you cannot work legally without work authorisation regardless of the reasons, if you choose to do so then either you or your employer is liable to face the consequences. If you withold the fact that you are not authorised to work then you incurr the wrath of your employer and possible dissmissal if he is fined for his unknowing part in this. You as an individual will do your case no favours if you fraudulantly work while not authorised.

Ultimately it is you who must decide what action you must take, this forum is here to help you decide, it can't be simpler.

Rete

Perhaps after the holiday, either M. Udall or Mr. F. will answer your question with a definitive answer.

However, bear in mind that there is absolutely nothing absolute with INS. Even if in the books, or a BIA decision, it is the adjudicator who has the ability to deny or approve a case. Just as an agent at the POE can allow or disallow entry of a person who has no intention of migrating at the moment with a volume of proof to back up their claims.

Rete