davdah

That is the question. Now for some facts. I'm a U.S. citizen and I met my fiancee on line back in Dec last year. We met face to face in January. She was here on a 18 month J1 from Indonesia which had expired about 6 months prior to us meeting. She got taken into custody a couple weeks ago because of the overstay. The strange part is she had a full time job for the last 9 months which was above the table. The job is gone now since part of the bond requirements is not working any more. She got caught because I helped her to complete her taxes for the prior year. No, it wasn't the IRS, it was her former employer who was the J1 sponsor when she called them for the W2. They called it in. Funny thing is we drove from San Diego to San Antonio Tx which has about 10 check points all together without a hitch. This was before I really knew she wasn't exactly legal. While on that trip, is when I asked her to marry me. Two days after returning is when INS came knocking. I got the 10K bond posted and got her a lawyer. I have been trying to educate myself on all the issues etc concerning this. The attorney said the best course of action is an adjustment of status. From what Ive read that is a gamble at best. I know a marriage, kids, and things like that are not good enough for a waiver on the two year rule. Financial hardship is out too. Since I am fairly well off we can't cry poverty either. I am wondering if the job she had which is not on the skills list is subject to judical interpretation. Meaning, the judge can say 'yes your job is not listed here exactly but this other profession is close enough to say it is the same thing'. I am also wondering if the so called training she received can be called into question. In a way to say the J1 program was a fraud committed by the employer. In actuality it was a method for the employer to get $3.00 an hour labor as a hotel house keeper. I am an employer myself so I know what they were up to. Another is she was terminated from the program prior to completion. Does it have to be successfully completed to count? I guess I am looking for arguments to void the J1 status and the 2 year rule that may actually work. We've talked about asylum and she doesn't want to do that since she feels she will be selling out her country. A couple things the attorney brought up was issues of our relationship. One thing that will look funny is the age. Im 17 years her senior. The other is my financial status. Although Im old enough and smart enough to know when a women is with me for the wrong reasons, I wonder if that will cloud the decisions made in our case. From what Ive read there is a lot of marriage fraud. So I would expect they would look very closely at this. I am not looking to pull anything funny. I want everything above board but at the same time I don't want to just lay down and accept rough treatment either. Anyone elses experiences or opinions are welcome.

ian-mstm

The 2 year HRR is a lot like the concept of eminent domain - the government can (and pretty much always does) assert its final authority. She has a contractual obligation to complete the HRR. Being married to a USC, being gainfully employed, being above board in every other way... none of it matters. It is virtually impossible to get the 2 year HRR waived and she will *not* be able to file for adjustment of status even if you do get married *until* she has completed her 2 year obligation. I say "virtually impossible" because there is always a bit of wiggle room for extraordinary circumstances... but we're talking about fear of a hostile government or something along those lines... nothing really that your fiancee has in her favor.

You can try to call the employer on their treatment of her, but that speaks to *their* character... nothing to do with your fiancee's obligation to complete the terms of the visa.

Ian

Just Jenney

Personally I think that if you are only concerned about how to avoid the 2-year J1 rule, you need to reevaluate things. There are so many red flags that I think I lost count.

You said she got here on an 18-month J1 visa which expired in June 2006, that she was terminated by her J1 employer before the 18 months were through, but that the for the last 9 months (until 2 weeks ago) she’s been working “above the table.” Those facts contradict each other. As soon as she was terminated from her job by her J1 sponsor, she should have returned to Indonesia, because she had no legal reason to remain in the US. Where did you get the idea that she’s been working legally all this time?

You don’t say if her original J1 visa expiration date (had she completed the program) was last June, or if she was terminated from her job last June. Either way, she’s been in overstay for far longer than 180 days, which means that if she leaves the US – either through deportation or because she has to complete the 2-year HRR – she faces a 3-year to 10-year ban from the US. I’m curious what your attorney said about that.

I’m sorry to say that I have doubts that this woman’s intentions are genuine. I mean, think about it. She’s a young woman who came to the US on a J1 visa to work as a hotel housekeeper. She got fired from that job, but stayed in the US nevertheless. While here, she meets a guy online who is 17 years older than she is, well-off, and American. She does not tell him that she is in the country living and working illegally. A few months later they go on a trip together and he – not knowing that “she wasn’t exactly legal” – asks her to marry him; she says “yes,” probably without even hesitating. Two days later she gets detained by USCIS (not INS) and he posts a $10,000 bond for her. She can’t work so he takes care of her, hires an attorney for her, and will do whatever it takes to keep her from having to leave the US. Wow, she’s got it made!

~ Jenney

davdah

Perhaps I have the dates off a bit. To be more exact. She was terminated feb 2006. It was due to the boss wanting more than an employee and her refusal. The J1 would have expired Aug 2006. The new job she actually worked just over a year. So, yes its way over 180 days. When I say legally working I mean she is paying taxes etc like anyone else. That was one reason I didnt question anything since I assumed that if a person has a job where they are having taxes taken out etc. and they have a valid SSN all must be ok. I guess not. Yes, on its face some things look funny. I agree with that. Aside from that, the attorney has not been very forthcoming about explaining everything, which is why I am here and doing my homework. Ive dealt with attorneys and I know they have their reputation for a good reason. This 3 to 10 year ban you mentioned, is that something that is for the most part always done. Or is it one of those 'maximum penalty' items that can be done?

Noorah101

Once she was no longer employed by her J-1 sponsor, she was supposed to go back home. What work authorization did she have beyond that to continue working for another employer? She would have needed an new work visa in order to work for anyone besides her J-1 sponsor.

Unfortunately, not. An alien must have a proper visa or work authorization to live and work legally in the USA.

The ban is the law. If you overstay more than 180 days, you automatically incur a 3-year ban. If you overstay more than a year, you automatically incur a 10-year ban. The only way around the ban is to file a hardship waiver, and the hardship must be to the USC, not the alien.

If your fiancee is subject to the 2-year HRR, you can try for AOS, but be prepared for it to get denied in the end because of the HRR requirement. Then once she leaves to go back home, be prepared for the ban. Is her home country some place that you could move to until the ban is lifted?

Rene

Templar

There are endless supply of fools, match-made for endless supply
of scammers.

--

Just Jenney

Paying taxes is a completely separate issue from having actual legal work authorization. The IRS doesn’t care if you’re legal or not – they just want your money. Millions of illegal aliens faithfully file tax returns every year; it doesn’t make them any more legal than the next illegal alien who doesn’t file tax returns.

It could be that the attorney is not being forthcoming because s/he knows that your fiancee’s situation isn’t looking good. She simply doesn’t have very many options with the positive outcome that you want. Sorry, don’t mean to be a wet blanket but we’ve all seen this sort of thing before.

As Rene mentioned, this is not a maximum penalty situation, it is what it is. And in her case, the hardship waiver isn’t an option because you have already admitted that you live a comfortable lifestyle, own your own business, are capable of being gainfully employed, etc. You would suffer no hardship due to her absence, and that’s all the US government cares about. There have been people on this forum who have had to stay apart because the non-USC partner overstayed and incurred a ban; so yes, it can and does happen.

~ Jenney

davdah

Ive done some more research and the outlook doesn't look good. Yup your right about the 3 / 10 year ban. In this case its 10 since the over stay is over a year. When i said about not questioning the employment I meant that because she was employed that it didn't raise any red flags in my mind that she wasn't legal. Kinda makes one wonder about the immigration system. Since her SSN was reported to the state and the fed each quarter the employer filed their returns how is it that no one thought to look into that? Even when hired you have to provide documentation to prove your legal. At the time she took the second job her J1 was expired. I even looked at the asylum possibility but that is out since she's been here over a year and has not filed. The other one (cant think of the name) that is similar to asylum probably won't fly since there are issues of hardship that have to apply to myself. There would be none that would be considered 'extreme' or even a real hardship at all. Your probably right about the lawyer not saying much because they know its a sinking ship. So, I may have tossed 3500 in legal fees for nothing. I hate to think she will have to leave. But it looks that way. There is no way I could live in Indonesia. I was in southeast Asia years ago while in the military but its a different world now. My business is here in the states and requires my day to day attention. Even if the outcome goes south on me I will still cherish the memories of the time spent with her. I do appreciate everyones inputs though, even the comment about scammers or something along those lines (freedom of speach).

Noorah101

I applaud your mature attitude. As for her working, it's really up to the employer to hire someone without proper work authorization. Either he knew it and didn't care, or he didn't know what to look for. As for her paying taxes, since IRS and USCIS are different government agencies, the IRS has no reason to report whatever they receive to USCIS, and USCIS has no idea who pays tax unless there is more paperwork to submit to them (such as proof of your joint life together after marriage, etc).

I wish the best for you.
Rene

davdah

I suppose the employer will only look at what they want and leave it at that. They probably assume someone will catch it if there is an issue. Even myself, I am an employer and until now assumed the IRS or someone would check the records to verify what we get, SSN etc is accurate. I guess that isn't true. Maybe I should take a closer look at my own employees. One of them is from Brazil. Everything looked ok. Oh boy, maybe I opened a can of worms.
Everyone Iv'e talked to that has been in similar situations has either been sent back as described here or one of the listed exceptions was able to be applied. I don't see any that are realistically available. I even sugested the idea of getting a place in Mexico since its so close and we could be together there if we end up losing the case. I got to thinking about it though. This would be her first marriage, my third. Would it be fair to put her through a 10 year living arrangement like that? Maybe it might be best to let her go so she can have a normal life back home if the case is lost. It breaks my heart to think that but in the long run it would probably be better for her. Thanks for your input Rene.

Dave

ian-mstm

While we can only imagine how you feel just now... sadly, this is one of the realities when dealing with an international romance. Relationships are hard enough without government regulations and stuff getting in the way. Good luck to you.

Ian

Tracym

That is so very sad. People just make a mistake (hers in overstaying) and it makes such a huge impact on their lives.

It is a very personally frightening thing, that a government can say if you can marry and be with who you choose. I understand the necessity, but still frightening to the people who are awaiting decisions.

There's no hope for the OP with the immigration reforms re. illegal immigrants is there? I don't know the details, and suppose it won't come fast enough....

Just Jenney

One thing to bear in mind that it is possible for immigrants to obtain documentation like SSNs, drivers licenses and employment authorization cards (EADs) LEGALLY, and for those documents to LOOK valid on the surface when they're actually not.

As a crude sort of analogy, consider Paris Hilton. She has a drivers license, which we'll assume is unexpired. But her license has also been suspended. Just because Paris carries an unexpired drivers license in her Louis Vuitton bag doesn't mean she is legally allowed to drive. Same thing goes for your fiancee: Just because she had an unexpired employment authorization card (EAD) when she applied for that second job doesn't mean she was legally allowed to work.

Your fiancee got an 18-month J1 visa which would have expired in August 2006, which means she probably entered the US around February 2005. She would have obtained an EAD through her J1 employer. Since her J1 visa was supposed to expire in August 2006, her EAD would have only been valid through August 2006 as well.

With her EAD she could obtain an SSN card, which of course has no expiration date on it. (Like the rest of us, her SSN is hers for life.) However, her SSN card would have a legend printed on it that says, "VALID FOR WORK ONLY WITH DHS AUTHORIZATION" -- hard to miss if you're looking at the card, believe me. This "DHS Authorization" is her EAD card -- they go hand-in-hand.

But then she was terminated from her J1 job in February 2006. The minute she was fired from that job, her EAD became invalid. The minute her EAD became invalid, she could no longer use her SSN for employment purposes. The SSN is still "valid" -- she could use it for banking purposes, for instance, or even to file tax returns. But NOT for work.

Now, here's the thing: Her EAD had an August 2006 expiration date on it. You said she'd been working in her second (illegal) job since about February 2006 (give or take) -- so on the surface, her EAD would have still looked like it was valid when she applied for that second job. But "unexpired" is NOT the same thing as "valid." To someone not familiar with immigration work authorization regulations, it would be easy to assume that because an EAD is unexpired that it is still valid -- and thus, that the SSN with the legend on it was still valid for employment purposes.

But in her case, this would have been impossible. She would have presented those documents to the second employer knowing that they were invalid, even though they were unexpired. At the same time, though, it makes one wonder why the second employer didn't ask for new, unexpired documentation after August 2006 when her EAD expired.

All that said, do not use your fiancee's situation as a point of comparison to your employees who happen to be immigrants to the US. As an employer, you should review the I-9 Employment Eligibility Verification form and instructions. There are strict regulations on what you can and can't ask them to produce as documentation. Don't go on a witchhunt. Just because your fiancee is dishonest and trying to do a run-around US immigration laws doesn't mean all immigrants are.

~ Jenney

Tracym

Come on, he's not on a witchhunt. Nor did he say all immigrants are dishonest.

He just admitted he didn't know all the details about work authorisation, and wants to check and make sure he's not doing anything illegal with his own employees - as he should. As long as he follows the law while doing it.

Poor guy (understandably) sounds heartbroken.

Just Jenney

I never said otherwise.

Don't infer that I said anything differently from what you've just said. I just used different words.

~ Jenney