Nowonmai

HI everyone.

I'd appreciate some feedback from anyone who knows anything about this, or who is in a similar position. I am a UK citizen, currently staying with my girlfriend who is a US citizen in Boston, USA. We've been together for over 2 years since we met in Japan in July 2000.

I've been out of work since December last year due to the death of the telecoms industry; we sat about in UK until July while I looked for work. Then when nothing was on the horizon we headed over to the US; I entered the country on the Visa Waiver Program. Now I am approaching the end of the allotted 90 days, and I am in a huge quandary.

While I have been here I have been looking for work (that is, I have been applying for jobs and hoping to find someone willing to sponsor me for a working visa). The way I understand it is, firstly you have to have a degree (is that set in stone?) and secondly you have to be offered a position earning at least $40K; is this true? I don't have a degree; all I have is 17 years in-depth electronic & telecoms experience (13 years spent in the British Army).

Failing that (and I appreciate my chances are slim) I am thinking of just kicking back for a few months until the work situation picks up (she is working at the minute and is willing to support me until things start to look up again). I'm pretty sure I have no chance of returning to UK and successfully applying for a 6-month tourist visa in order to return - I have no real ties in UK. And we have both been married twice; although I would be willing to do it again, she wouldn't - at least not yet. We don't want to be separated for any longer than is absolutely necessary; the only option that seems open is either to leave and try to enter again on the VWP (which I know is fraught with danger, especially if I have recently left), or to stay where I am and violate the terms of the VWP. The way I understand this is, if I am caught I face instant deportation; if I leave voluntarily at some future point I get a 3 year ban from returning. I am also thinking of forming a local band; does anyone know anything about musician or artist visas?

Any input (negative or otherwise) would be greatly appreciated.

Thanks

Nowonmai

justine

Well, I over stayed my visa waiver and now I am subject to the 10 year bar. I can't leave the US until I change status to Green Card. I arrived in 1996 and have been able to leave US, and it has really complicated things for me.

My advice is not to overstay visa waiver. I would leave every 3 months or leave and then try and get some working visa.

justine

I meant to say I haven't been able to leave US.

Nowonmai

I'm sorry, now you have confused me; Green Card? 10 year ban?

justine

Sorry, didn't mean to confuse. I arrived in 1996 on visa waiver. I married my husband who was a green card holder and overstayed my visa. We filed for change of status, however priority date was about 5 years away. Marrying a green card holder gives me no right to be here and I just went to the back of the list at the INS.

Fortunately they introduced a new visa (V Visa) that I was able to apply for in the mean time while I was waiting for Green card. So even though I have been legal and able to work while waiting for Green Card I still couldn't leave because I am subject to the ban.

It is 2002 and I have only just filed for green card and as I overstayed my visa I am still subject to the 10 year ban until I get my Green Card which could be another 18 months away. The ban is dependent on how long you overstay. If you overstay I think less than 1 year you will only be subject to a 3 year ban. If you overstay longer then you are subject to a 10 year ban.

If you aren't concerned about ever leaving the US then it's not such a big deal. However, finding a job is going to be your greatest challenge. Overstaying your Visa Waiver and then trying to change status if someone did decide to sponsor you could prove to be a major problem.

Your best bet would be to get your US citizen girlfriend to marry you.

Nowonmai

Thanks, that's much clearer! The problem is, as I said originally, is that we have both been married (and divorced) twice before and so she really doesn't want to get married again, especially in these circumstances. I too am loathe to do that, because the circumstances of both my previous marriages while I was in the Forces were very similar (ie. to stop the powers-that-be from being able to separate us). As a matter of interest, where are you from, Justine? Your circumstances seem very strange - the fact that you haven't been deported (more power to you for that!) for violating the VWP interests me.

On another note; my girlfriends brother worked for the INS a couple of years ago, and although he admits he is no expert (he was working in the Diversity Visa section), he reckons there is a loophole. He says that there are lots of illegals who are working and paying taxes, mainly because they are doing the kind of jobs that Americans would prefer not to have to do (scrubbing hotel toilets, working in kitchens, that kind of thing). He says that the INS looks in the other direction because these people firstly are doing crappy jobs for crappy money and paying taxes while they do it. I'm dubious about his idea, but if anyone knows any more about it, I'd be curious - I'll work pretty much anywhere right now just to have some stability. I have no idea if these people entered the country on Visa Waiver Programs (he was talking mainly about Mexicans - no disrespect to them) or what.

justine

I am living in California, but an originally from New Zealand. Before I came to the States I lived in London and that's where I met my kiwi husband. He had a green card and was transferred from US to london to set up an office there and then when that we over he moved back to the States and I followed.

For 5 years I worked illegally. First job was a nanny 2 years. Was offered a job by the family to work in there office - 1 year. Then I was offered a job from a friend who was starting a web company - 2 years. I worked as an independent contractor. This means you can be employed by a company (basically as a temp), but the rules are that you make your own hours, you work from home or from their office and pay your own tax. It is a good idea to work for more than one company over a tax year. (You can get better info on this from the IRS website.) Basically, I worked and paid taxes the whole time. You can file for a Tax ID number (I think it is called ITIN number), which looks like SSN. You can use this number to open a bank account and file taxes.

I didn't have any real problems with being illegal, once you are here they don't come looking for you. If I was ever stopped by CHP, I would just stay I was visiting. But was just a bummer not being able to even travel to Tijuna for the day.

Nowonmai

Thanks Justine, you just answered part of my second question also. So is there actually an official position on working "illegally"? I mean, I always imagined that as soon as anyone found out you were out of visa status (or had violated the VWP), you'd just get kicked out of the country, no questions asked. If I was to call the INS in Boston, is there any chance they'd actually give me information about how to go about this, or would they just tell me to get a life and go home? Where we live at the minute, there are any amount of gas stations paying minimum wages and that kind of thing; so what happens, do you just go in there and ask for a job, then contact INS and say "ok, I violated my Visa Waiver - but I've got a crappy local job; can I stay"?!?!?!

justine

No official position with the INS or even unofficial position. They are pretty black and white about the visa waiver in that you should leave after your 3 months, although they won't come looking for you.

After your 3 months is up you are now illegal or a nicer way to put it 'out of status' and there is no way the INS will help you get legal unless you get married. Remember the VWP means you have waived all your rights to a visa. There is no visa you can apply for in the US once you overstay that VWP.

Your position now is with the IRS. You get the tax Id number from the IRS, and then scout around to see who might be prepared to employ you as an independent contractor. You have to remember also that the employer is taking a risk employing you. Generally, a minimum wage position like a gas station job wouldn't be offered as an independent contractor position, it would more likely be offered as an 'under the table' position.

Have you considered going back to Uk and applying for any other type of visa. Because having a visa expire is better than overstaying a visa waiver.

Nowonmai

Yeah, I've considered going back to UK. The problem is, because the Visa Wiaver Program is in existence, it is almost impossible to get a 6-month tourist visa (which would be ideal, especially as it is extendible to 12 months), because apparently the philosphy is that you can do all the touristy things possible on a 3-month visa waiver. Plus I have very little to support a visa application; because I have worked all over the world since I left the Forces in 1997, I have almost no ties in UK which INS would see as a valid reason to return to UK. The only real ties I have are my parents - and apparently if you are over 21 (I am 35) your parents are no longer considered as binding ties. So that is the problem I have. Right now all I want is to be able to stay in one place with someone I love; I have led a pretty nomadic existence after 13 years in the Forces and then 5 years living in hotel rooms and suchlike across the globe. So earning big money is not a real motivation for me; simply to be able to stay put (we are living in a nice house with cheap rent in a fairly nice area right now; I see no reason to rock the boat if I can help it at all). I know that where we live there are lots of Irish people; I'm quite sure most of them are illegal - I guess I should be out and about trawling pubs and talking to people to see how they did it.

So what you are saying is that even being out of visa status doesn't stop you getting a tax ID number from IRS? At the minute I am terrified to speak to anyone in official places; apologies for picking your brain, but I want to get as much info as possible before I "reveal" myself to anyone!

justine

I used to be sceptical about revealling myself, but really there isn't any risk in being deported because you ask questions. Here is some info on the Tax ID number. I file a joint return with my husband and I don't know how this will work if you file a return on your own.

I would certainly apply for the ITIN before your 3 months is up. I got it when I was illegal, but I was married.

Individual Taxpayer Identification Number

What is ITIN?

An ITIN, or IRS Individual Taxpayer Identification Number, is a tax processing number. An ITIN is issued by the U.S. Internal Revenue Service (IRS) to individuals who are required to have a U.S. taxpayer identification number but who do not have, and are not eligible to obtain a Social Security Number (SSN) issued by the Social Security Administration (SSA). An ITIN is a 9-digit number, beginning with the number "9", formatted like a SSN (NNN-NN- NNN). The temporary IRS Number previously assigned is no longer valid.

What is the purpose of an ITIN?

The ITIN is for tax purposes only. The issuance of an ITIN does not:

entitle the recipient to Social Security benefits or the Earned Income Tax Credit (EITC);
create an inference regarding the individual's immigration status;
give the individual the right to work in the U.S. Any individual who is eligible to be legally employed in the U.S. must have a SSN.
When completing the tax return (Form 1040, 1040A, 1040EZ, 1040NR, 1040NR-EZ), the individual will enter their ITIN in the space for the SSN.

How do I know if I need an ITIN?

If you must file a U.S. tax return or you are listed on a tax return as a spouse or a dependent and you do not have, and cannot obtain, a valid SSN you must apply for an ITIN. The IRS no longer accepts "SSA205c", "applied for", "NRA", blanks, or previously issued IRS temporary numbers. Include your ITIN on the return to ensure prompt processing and receipt of any refund. New Internal Revenue Regulations require including a valid Taxpayer Identification Number (TIN) on all U.S. federal income tax returns. Each person listed on the return must have a valid TIN (either a SSN or an ITIN). If a return requesting a refund is filed without a SSN or ITIN for the primary filer and spouse, the refund will be delayed until they obtain an identification number. If a dependent SSN/ITIN is missing, the exemptions will be denied and refunds will be adjusted accordingly. If you are previously issued a temporary IRS Number, you must now apply for an ITIN.

How do I apply for an ITIN?

To obtain an ITIN, you must complete IRS Form W-7 , Application for IRS Individual Taxpayer Identification Number. You may complete and sign a Form W-7 for a dependent as long as you indicate your relationship to the applicant by checking the parent or guardian's box in the signature area of the application. However, other dependents and spouses must complete and sign their own Forms W-7. The Form W-7 requires supporting documentation substantiating foreign/alien status, true identity and continued existence of the applicant. If you, your spouse and/or dependents require ITINs, you must submit separate Forms W-7 and supporting documentation. You may mail the documentation, along with the Form W-7, to the Philadelphia IRS Campus, present it at IRS field offices, or process your application through Acceptance Agent authorized by the IRS.

Are ITINs valid for work purposes?

No. ITINS are for federal income tax purposes ONLY. Alien individuals who are legally admitted to the U.S. for permanent residence or other categories which authorize U.S. employment are eligible for SSNs. Individuals who are eligible for SSNs do not qualify for ITINS.

What are Acceptance Agents?

Acceptance Agents are entities (colleges, financial institutions, accounting firms, etc.) Who are authorized by the IRS to assist applicants in obtaining ITINs. They review the applicant's documentation and forward the completed Form W-7 to IRS for processing.

Lucy

I believe you can get an H1B visa without a degree, as long as you have
enough experience (and I think your 17 years would be enough). Don't know
about the $40K thing but you would need a job that requires your 17 years
experience and most jobs like that would pay over $40K anyway, I would
think.

The hard part is finding an employer to sponsor you. The employer would have
to prove that no qualified US citizen is available to take the job and with
the telecom industry as bad as it is, there are plenty of unemployed people
desperate to find that kind of work. (At least where I live, and I think
most parts of the US are in a similar situation)

I really wouldn't recommend overstaying the visa waiver though. It could
cause all kinds of problems down the line.

    > While I have been here I have been looking for work (that is, I have
    > been applying for jobs and hoping to find someone willing to sponsor me
    > for a working visa). The way I understand it is, firstly you have to
    > have a degree (is that set in stone?) and secondly you have to be
    > offered a position earning at least $40K; is this true? I don't have a
    > degree; all I have is 17 years in-depth electronic & telecoms experience
    > (13 years spent in the British Army).

Stuart Brook

justine wrote:
    > I used to be sceptical about revealling myself, but really there isn't
    > any risk in being deported because you ask questions. Here is some info
    > on the Tax ID number. I file a joint return with my husband and I don't
    > know how this will work if you file a return on your own.
    > I would certainly apply for the ITIN before your 3 months is up. I got
    > it when I was illegal, but I was married.

I have heard people give some pretty bad advice before but this has got
to be right up there. This is aiding and abetting criminal activity.

First, the INS will put overstayers in custody and deport them. It most
certainly does happen.

Second, to get employment, you need an SSN. You can't get an SSN
without valid work status in the US any more. The ITIN will not cut the
mustard with an intelligent employer. All employers are supposed to
validate your legal ability to work in the US. A few years ago, nearly
anyone could get an SSN, but not any more.

justine

oh please settle down....

I am telling my experience.

Yes if you overstay you are at risk at being deported, but they certainly don't go looking for people who overstay their VWP.

To be employed, yes you do need a SSN, but an independent contractor is not considered employed. A contractor provides a service.

Stuart Brook

justine wrote:
    > oh please settle down....
    > I am telling my experience.
    > Yes if you overstay you are at risk at being deported, but they
    > certainly don't go looking for people who overstay their VWP.
    > To be employed, yes you do need a SSN, but an independent contractor is
    > not considered employed. A contractor provides a service.
    > --
    > Posted via http://britishexpats.com

You continue to post ways to get people to try to break the law!

Astounding!

Have you ever heard of aiding and abetting, or how about counselling to
commit a crime ?