Zik

Hi, i entered the US on a K1 Visa in July 23 2002, me and my fiance
got married in August and went honeymooning etc...
on September 4 we applied for AOS at the Albany office in NY. now the
dilema we have is the following: i have been trying to find a job for
the past 2 months so far no success, and i still have my position with
my old Company which is a US based one, they told me they won't
transfer me unless i have the green card.
EAD wasn't enough.

and with the nature of my job, a field engineer, i can live anywhere i
want and they send me on assignments that last for 1 to 3 months,
after which i come back home for 2/3 weeks, then go to the job site
again. and since my company didn't transfer me they would only send me
on jobs overseas.

Now in Albany it usually takes from 4 to 5 months to go to the AOS
interview.
which means i still have 2 good months before i hear anything, and at
the same time i'm scheduled to go to a job overseas which will last
for about a month. and then may be after that i will be going to
another one.

of course me and my wife, have all our bank accounts joint, i'm listed
on her car insurance, we have same credit card accounts, a lot of
pictures of our wedding/honeymoon ( my family travelled to the US for
the wedding) etc... enough evidence to show that we are a married
couple and we live in the same apartment.

But my main concern:
1- will this lifestyle we have where i'm not home most of the time for
work reasons, cause a denial of our AOS??
2- in case of such a denial are we allowed to file again?? where i
would just quit that job and find any kind of work in the US.

thanks,

Zik

Mrtravel

If your job requires travel, I doubt that would be a reason to deny AOS.
They wouldn't expect your wife to accompany you on all of your trips.

zik wrote:
    > Hi, i entered the US on a K1 Visa in July 23 2002, me and my fiance
    > got married in August and went honeymooning etc...
    > on September 4 we applied for AOS at the Albany office in NY. now the
    > dilema we have is the following: i have been trying to find a job for
    > the past 2 months so far no success, and i still have my position with
    > my old Company which is a US based one, they told me they won't
    > transfer me unless i have the green card.
    > EAD wasn't enough.
    > and with the nature of my job, a field engineer, i can live anywhere i
    > want and they send me on assignments that last for 1 to 3 months,
    > after which i come back home for 2/3 weeks, then go to the job site
    > again. and since my company didn't transfer me they would only send me
    > on jobs overseas.
    > Now in Albany it usually takes from 4 to 5 months to go to the AOS
    > interview.
    > which means i still have 2 good months before i hear anything, and at
    > the same time i'm scheduled to go to a job overseas which will last
    > for about a month. and then may be after that i will be going to
    > another one.
    > of course me and my wife, have all our bank accounts joint, i'm listed
    > on her car insurance, we have same credit card accounts, a lot of
    > pictures of our wedding/honeymoon ( my family travelled to the US for
    > the wedding) etc... enough evidence to show that we are a married
    > couple and we live in the same apartment.
    > But my main concern:
    > 1- will this lifestyle we have where i'm not home most of the time for
    > work reasons, cause a denial of our AOS??
    > 2- in case of such a denial are we allowed to file again?? where i
    > would just quit that job and find any kind of work in the US.
    > thanks,
    > Zik

Folinskyinla

Hi:

Situations like yours are why the Master of the Universe, blessed by his Name, invented advance parole. Been there, done that, no problem.

Chris Parker

    > now the dilema we have is the following: i have been trying to find a
    > job for the past 2 months so far no success, and i still have my
    > position with my old Company which is a US based one, they told me
    > they won't transfer me unless i have the green card.
    > EAD wasn't enough.

This is illegal employment discrimination, and you would be wise to
mention that to them. Your EAD is an alien registration receipt card.
There should be no discussion about your form of employment
authorization during interviewing, and afterwards only with regards to
completing Form I-9.

You can file a charge-complaints against employers with the U.S.
Attorney General.

http://www.usdoj.gov/crt/osc/


    > and with the nature of my job, a field engineer, i can live anywhere i
    > want and they send me on assignments that last for 1 to 3 months,
    > after which i come back home for 2/3 weeks, then go to the job site
    > again. and since my company didn't transfer me they would only send me
    > on jobs overseas.

You want a U.S. based job, and you are allowed to work in the U.S.
without restrictions and you do not need any sponsorship from them.

    > Now in Albany it usually takes from 4 to 5 months to go to the AOS
    > interview.
    > which means i still have 2 good months before i hear anything, and at
    > the same time i'm scheduled to go to a job overseas which will last
    > for about a month. and then may be after that i will be going to
    > another one.

I would stay away from a job requiring foreign travel at this time;
your residence is in the U.S. and you should find a permanent position
that is U.S.-based. It is going to make pursuing adjustment of status
difficult, as well as keeping your green card afterwards complicated.

    > 1- will this lifestyle we have where i'm not home most of the time for
    > work reasons, cause a denial of our AOS??

Not necessarily an adjustment denial, although if you aren't living
together actually it can appear to be a marriage of convenience.

    > 2- in case of such a denial are we allowed to file again?? where i
    > would just quit that job and find any kind of work in the US.

Yes, you are permanently eligble to file an application for adjustment
of status. However, the reasons for such a denial will taint the
future applications as long as nothing changes in your living/working
situation. You shouldn't have to deal with adjustment denial, just
get a better job and stop allowing potential employers think that a
green card is the only way someone can work legally. (BTW - there is
no such document called a "green card," nor is the permanent resident
card actually green, nor are there penalties for mis-stating your
status to an employer prior to completing Form I-9 when documents are
checked, *after* hiring; so maybe you do have a green card once you
get your EAD).


CP

Folinskyinla

Hi Chris:

Just out of curiosity, what is your authority for this statement? I "live" my professional life within the realm of the Immigration & Nationality Act, and I know that under section 274B(a) of the Act, adjustment applicants are NOT in the classification of "protected individual" when it comes to "citizenship status." The employer can be dinged for discrimination if based upon "national origin".

I'm curious.

Chris Parker

    > Just out of curiosity, what is your authority for this statement? I
    > "live" my professional life within the realm of the Immigration &
    > Nationality Act, and I know that under section 274B(a) of the Act,
    > adjustment applicants are NOT in the classification of "protected
    > individual" when it comes to "citizenship status." The employer can be
    > dinged for discrimination if based upon "national origin".

I don't have any special authority. I'm just reading the law and
publications.

First of all, asking a potential employee if they have a green card is
arguably "document abuse" discrimination, which is protects all
work-authorized individuals and against employers of all sizes.
Asking someone if they have work authorization is all that the
employer should be asking at this stage. In truth, most employers
mean, "are you allowed to work?" when they ask "do you have a green
card." If an employer asks an illegal question, isn't it perfectly
defensive to give an inaccurate answer to prevent illegal
discrimination?

Furthermore, and a "green card" used to mean (and in most people's
minds still means) an "alien registration receipt card," and an EAD
I-688B is a card evidencing alien registration under 8 CFR 264.1(b),
so you could call it a green card just fine in my opinion (especially
given the ambiguity of this non-technical term).

Yes, until you have a green card, you are not protected against
citizenship status discrimination. I'm unclear what OSC does in the
case of a charge of citizenship status discrimination by an adjustment
applicant if they are adjusted by the time the investigation is
completed. You also have 6 months to file the charge, and it is
unclear if you can charge an employer with citizenship status
discrimination after you are adjusted for an act which occurred prior
to adjustment. These are questions to ask OSC, and in any event
filing a charge of citizenship status discrimination while also
declaring you are only work authorized under INA 274A isn't
misrepresentation of your immigration status.

Of course, all of this doesn't charge the fact that the employer
should treat all employment applicants equally, avoid citizenship
status discrimination against all applicants, and not inquiry or
verify documents relating to employment authorization until after
hire. They also run risks of prosecution under the Civil Rights Act
when they do that, which also protects all individuals (including even
unauthorized aliens).

Do you disagree with any of my statements made here?


CP

Zik

Chris you are right about your comments,and i was inclined to mention
the I9 and how it shows the EAD as a valid document, but decided to
bite the bullet and be patient. i think the company is trying to
protect themselves from any legal issue, in the sense that if i don't
get adjusted they might be in legal problem. Mrtravel was right,
although the company is US based,i have been working for the overseas
office, so now i am asking them to transfer me, the answer originally
was no, but after some talks,they said they would rather wait until i
get my green card, so based on that and on the fact that my AOS should
be coming in 2/3 months,me and my wife decided that it would be ok to
stick to the job i have, and seek the transfer once i get Adjusted (
green Card).
it's risky, but we thought to give it a shot, and if things seemed to
be not working that great, then i will quit that job and find sthg
here.
i feel i have enough evidence to show that our marriage is not a
marriage of conveniance,things like the joint account,which is the
same account where my payroll gets direct deposited, credit
cards,pictures etc...

anyway thanks a lot all of you for the recommendations, and will let
you know how things would work out in the future.

Zik

Chris Parker

    > Chris you are right about your comments,and i was inclined to mention
    > the I9 and how it shows the EAD as a valid document, but decided to
    > bite the bullet and be patient. i think the company is trying to
    > protect themselves from any legal issue, in the sense that if i don't
    > get adjusted they might be in legal problem.

I-9 indemnifies the company from any legal problem, so there shouldn't
be a legal issue even if your adjustment is denied. If your
adjustment is denied, your I9 will state the date your employment
authorization expires, and unless you reverify with a renewed EAD or a
green card, you will be obligated to quit the job in conjunction with
your apparent obligation to leave the U.S. due to adjustment denial.

I suspect the people you talked with did not consult the Human
Resources director either (hiring decisions are typically made
independent of Human Resources). Even if they did, the methodology in
American society is that a green card is the only way someone is
authorized to work, but unfortunately changes in the law over the last
15 years changed that fact in fundamental ways very difficult for
ordinary people to understand and accept. In fact, many employers
believe they could be fined by the INS just for issuing a job offer to
unauthorized alien; in reality they can only be fined if they do not
verify your employment authorization through a completed Form I-9 by
the end of your third day of work!

Perhaps you should continue seeking new employment, but now be more
aware that employment discrimination is engraved in American culture
despite the fact we profess to be an open, equal opportunity society.
The best way to accomplish that is to remove as many references as you
can on your resume to indicate prior foreign residence. You also
would be wise to carefully perceive if an interviewer is straying from
his duties of examining you for work qualification to employment
authorization, and politely remind him that you are work authorized,
have a green card (if you are comfortable being so bold), and the
company will have no legal issues with accepting you into employment.

Good luck.
CP

n2stitch

Hi, I (USC) was laid off from my job in mid February, and our AOS interview was scheduled for mid April. In early April, I accepted and started a new position in a different state 800 miles away--the mortgage had to be paid etc. My husband could not come with me due to the livestock and property that we own, so he stayed behind to take care of them.

We went to our interview, and received an RFE regarding our continuing our relationship due to living separately, which we submitted in large quantity! We just recently received the letter indicating his AOS was approved, and he went to the local office and got the stamp in his passport.

Friends of ours had their interview a week or so before, and got their letter a few months ago, so I do think the issue of separate residence slowed us down, but it didn't cause a denial.

Bottom line, just keep lots of evidence you stay in contact while out of town. Emails, phone bills, logs of private chats on the computer. Other helpful evidence includes documents showing your spouse as your beneficiary on life insurance, being listed on your health insurance, being your emergency contact (usually asked for by your employer), letters from US friends/relatives testifying to the nature of your relationship. Make sure they get these letters notarized, and state that they are citizens (and how, by birth or naturalization), and I believe have them include the A# as well.

Good Luck!!!

Zik

n2stitch wrote in message news:...
    > Hi, I (USC) was laid off from my job in mid February, and our AOS
    > interview was scheduled for mid April. In early April, I accepted and
    > started a new position in a different state 800 miles away--the
    > mortgage had to be paid etc. My husband could not come with me due to
    > the livestock and property that we own, so he stayed behind to take
    > care of them.
    > We went to our interview, and received an RFE regarding our
    > continuing our relationship due to living separately, which we
    > submitted in large quantity! We just recently received the letter
    > indicating his AOS was approved, and he went to the local office and
    > got the stamp in his passport.
    > Friends of ours had their interview a week or so before, and got their
    > letter a few months ago, so I do think the issue of separate residence
    > slowed us down, but it didn't cause a denial.
    > Bottom line, just keep lots of evidence you stay in contact while out of
    > town. Emails, phone bills, logs of private chats on the computer.
    > Other helpful evidence includes documents showing your spouse as your
    > beneficiary on life insurance, being listed on your health insurance,
    > being your emergency contact (usually asked for by your employer),
    > letters from US friends/relatives testifying to the nature of your
    > relationship. Make sure they get these letters notarized, and state
    > that they are citizens (and how, by birth or naturalization), and I
    > believe have them include the A# as well.
    > Good Luck!!!
    > --

thanks for sharing those info. we kind of started gathering those
evidence you are talking about, like our itinerary of our honeymoon
trip, wedding pictures and other pictures from our normal life, the
medical insurance showing my wife (USC) as my beneficiary, also as my
emergency contact, etc...
the thing that i'm not sure how INS will examine, is the fact that my
residence will never change, the nature of my job requires me
travelling to overseas and provide technical assistance, during which
i am staying in a hotel,,, so all my travel is business related, after
which i come back to our residence.
anyhow, you mentioned you received an RFE, did you submitt at the time
of interview all those documents you mentioned, and still got an RFE
??
and did you apply for I 130 originally or I 129 F, because my
understanding is when you apply for AOS after you enter on K1, you get
your AOS interview date after sometime, and during the interview not
later you get the stamp on your passport.

thanks,

Zik

n2stitch

We had basically all the information available at the interview, but they wanted more evidence spanning the time between me leaving for NC and our interview (all 2-1/2 weeks worth!).

We applied for an I-130/I-485 combined, as my (UK) husband arrived here on a visa waiver. It was not our intention to get married at that time, but Sept 11 happened while he was here and it changed our perspective.

Each office handles the stamp differently. Not all offices will stamp your passport the day of the interview. Also, our interviewer was new, and all of her cases had to be reviewed by her supervisor as well.

Regarding your employment/residence, I think if you can show adequate proof that it is a valid marriage, you should be ok. Perhaps get a letter from your employer stating that much travel is required?

Good luck!

Lalita