Adjustment of Status for Visa Over Stay. Now Applying for Green Card

[mb100]

I would like to ask your expert opinion in the following immigration scenario.

The case involve the following situation.
1. Status violation of student F1 Visa and Over Stayed. (student visa issued 30 years ago).
2. Moved out of U.S. about 20 years ago, since last lived there.
3. I am Canadian Citizen now and getting married to a U.S. Citizen, will be filing for Green Card.
4. I have no criminal record for ANY violation.

Background:

At age 18, I came to the U.S. on B2-Visitor’s Visa. While on visitor’s Visa and I decided to study and got admission in a University. I applied for change of status and got F1-Student Visa (D/S “Duration of stay) from U.S. Immigration. This visa was issued about 30 years ago, on my home country’s passport.

In general student visa regulation required foreign students to enrol in school full time i.e.; to take minimum of 3 classes a semester and not allowed to work outside campus.

It was due to my poor financial condition, at times I had to dropped out of classes and worked outside campus without work authorization. It took me a while to graduate and thus extended my stay which put me on out of status situation.

I worked without authorization throughout the years, in order pay billings and school tuitions. On I-9 form, I put my SSN and Driver licence required to get work. My SSN was issued under my middle name only and does not state any restriction to work. However when documenting on I-9, I put my full name including my middle name. Over the years, I filled for tax and had tax returns. I do not know, if my SSN is now referencing my entire name in their data base.

A while ago, I got Canadian Immigration and moved to Canada. Now, I have Canadian Passport. I am getting married to a U.S. Citizen and we will be filing Green Card.

To File for Green Card (if eligible), I may have 3 processing options available:
1. The Consular Processing, (interview for Green Card at home country’s consulate)
2. K-Visa (fiancée visa),
3. Adjustment of status (A0S)-While in the U.S.

The Consular Processing and Fiancée K-VISA options:
These processes required to submit Form DS-260 and I-129 F respectively:
These forms specifically ask questions related to addresses since age 16, other nationalities , Educational records and other related information such as U.S driver licence, SSN etc. I am afraid, if I choose to take any of these processes then, I have to submit above information, which can lead to investigation and expose my overstay and violation of student visa.

Adjustment Of Status (AOS), while in the U.S:
This process required to submit Form I-485:
Form I-485 ask the following questions regarding overstay in the U.S:

• Have you ever worked in the United States without authorization?
• Since April 1, 1997 have you been unlawfully present in the United States?

a. For more than 180 days but less than a year, and then departed the United States.
b. For one year or more and then departed the United States.

( If I answer YES to the above questions, then I am declaring my overstay and worked unauthorized, which may invoke 10 year bar. Also please note, It’s has been about 20 years, since I moved out of the U.S).

Q1: I am wondering still a 10 year bar can apply when I already spend last 20 years outside of U.S.

Q2: Should I mention my SSN when filling out Immigration forms? Such as I-130, G-325A (biographic Data form with finger prints) and other forms. What are the consequences if I don’t tell my SSN and how they find out I had one?
(Reason, I am worried it may trace my tax fillings info in the past which can lead to know that I had worked without authorization and overstayed). Plus they can find other related records such as driver’s licence, credit cards, etc.

Q3. Will they still find out information regarding my Student Visa and overstayed, which was issued about 30 years ago on my home country passport? (That passport is expired long time ago).

Q4. Please let me know, based on my above situation which Green Card processing option is best and save for me ?
(I am very confuse as to what option to take. If I file Green Card through Consular Processing or K1-Spouse Visa. These processes ask details which potentially can expose my overstay and violation of Student Visa status. The only option may suits me is the Adjustment of Status (AOS) since it does not ask that many details).

Q5. In the past (about 30 years ago), I had given a U.S. SSN, Driver’s licence, State ID, Credit Cards, and utility bills was under my name. Will this information be verified during Green Card processing?

I look forward to your expert opinion. Now time is the essence, me and my girl friend are getting married soon. Your right guidance, experience may help us to solve this complex situation.

[scientist2016]

You are past the 10 yr. ban, so no problem there. Yes fill in all the details, and never lie. For AOS, you need to be in the US.
Regarding the AOS: When you enter the US using your Canadian passport, you are inspected/admitted. Since you are in the immediate family of US citizen category, the only thing that matters for AOS is that you have been inspected/admitted in. Everything else including your previous overstay, unauthorized work is irrelevant. But lying or omission of information on your forms, definitely will mess up things; so a huge No-No.

[mb100]

You are past the 10 yr. ban, so no problem there. Yes fill in all the details, and never lie. For AOS, you need to be in the US.
Regarding the AOS: When you enter the US using your Canadian passport, you are inspected/admitted. Since you are in the immediate family of US citizen category, the only thing that matters for AOS is that you have been inspected/admitted in. Everything else including your previous overstay, unauthorized work is irrelevant. But lying or omission of information on your forms, definitely will mess up things; so a huge No-No.

Appreciate your kind help SCIENTIST2016. thank you.

[newacct]

Q1: I am wondering still a 10 year bar can apply when I already spend last 20 years outside of U.S.

First of all, you only automatically start accruing "unlawful presence" when you stay past the date on your I-94. Since your I-94 had "D/S" and not a date, you do not automatically start accruing "unlawful presence" no matter how long you stay. Only if you applied for some benefit to USCIS and get denied for being out of status, or if an immigration judge made a final ruling against you, would you start to accrue "unlawful presence". So you never accrued any "unlawful presence", and you would not have a ban even if you left a month ago.

Second, "unlawful presence" only started counting in 1997 (20 years ago) which is when you left.

And lastly, even if you had years of unlawful presence (which you didn't, but even if you did), there is no ban now since you left more than 10 years ago.

Q2: Should I mention my SSN when filling out Immigration forms? Such as I-130, G-325A (biographic Data form with finger prints) and other forms. What are the consequences if I don’t tell my SSN and how they find out I had one?
(Reason, I am worried it may trace my tax fillings info in the past which can lead to know that I had worked without authorization and overstayed). Plus they can find other related records such as driver’s licence, credit cards, etc.

Yes, an SSN is for life, and you not only should, but MUST use your SSN on any forms that ask for it. Your tax filings are good; there is nothing that you should be shy about; if you didn't file taxes when you had income, that would be a problem, but filing taxes is what you were supposed to do. Overstay and working without authorization are fine. They do not affect you and you should be open and forthcoming about it, because being honest about it cannot hurt you, and can only help.

Q3. Will they still find out information regarding my Student Visa and overstayed, which was issued about 30 years ago on my home country passport? (That passport is expired long time ago).

Yes, and you should be forthcoming about that; it can only help you, not hurt.

Q4. Please let me know, based on my above situation which Green Card processing option is best and save for me ?
(I am very confuse as to what option to take. If I file Green Card through Consular Processing or K1-Spouse Visa. These processes ask details which potentially can expose my overstay and violation of Student Visa status. The only option may suits me is the Adjustment of Status (AOS) since it does not ask that many details).

There is no difference between the processes in terms of "exposing your overstay and violation of status". You should not be shy about those things. They do not hurt you.

You should consider which route to take based on which process is most suitable for you. K1 requires Adjustment of Status after you come to the US and marry, so your options 2 and 3 are the same, and so I am not sure what you meant by option 3. Do you mean like you come on a non-K1 nonimmigrant status, e.g. a B2 visitor, and do Adjustment of Status? There is no difference because it still involves Adjustment of Status, except that you are likely to be denied entry as a B2 visitor if the officer suspects you will do Adjustment of Status during that stay.

Consular processing generally means you will have to stay outside the US for longer, because it can take about a year from the petition filing to getting the immigrant visa, but you become a permanent resident immediately upon entry. Adjustment of Status (either from K1 or some other status) generally means you will be in the US sooner, but the process will take longer until you become a permanent resident (when AOS is approved); AOS can take a year sometimes for K1, but at least you will be in the US during the process if that matters for you, and you can work and travel in/out of the country once you get your EAD and AP. AOS is more expensive overall than Consular Processing.

Q5. In the past (about 30 years ago), I had given a U.S. SSN, Driver’s licence, State ID, Credit Cards, and utility bills was under my name. Will this information be verified during Green Card processing?

Not sure what you mean by "verified", but all of those thing are good; no need to be shy about them.

Adjustment Of Status (AOS), while in the U.S:
This process required to submit Form I-485:
Form I-485 ask the following questions regarding overstay in the U.S:

• Have you ever worked in the United States without authorization?

That should be Yes, and you will simply state factually when you worked without authorization. No further explanation is necessary.

• Since April 1, 1997 have you been unlawfully present in the United States?

a. For more than 180 days but less than a year, and then departed the United States.
b. For one year or more and then departed the United States.

As explained above, your answer to these questions is No, for many reasons, most importantly being that you got D/S on your I-94, so you did not stay beyond the date on your I-94, and so did not accrue "Unlawful presence" (which furthermore could not be accrued before 1997 anyway).

( If I answer YES to the above questions, then I am declaring my overstay and worked unauthorized, which may invoke 10 year bar. Also please note, It’s has been about 20 years, since I moved out of the U.S).

You should answer all question honestly, without being shy. You should declare the things that are true; none of these things can hurt you. You do not have a ban.

There is one more question on the I-485 you have to answer Yes to, that is Part 8 #17 "Have you EVER violated the terms or conditions of your nonimmigrant status?". You would simply state factually when your status ended and that you stayed beyond that. No further explanation is needed.

The Consular Processing and Fiancée K-VISA options:
These processes required to submit Form DS-260 and I-129 F respectively:
These forms specifically ask questions related to addresses since age 16, other nationalities , Educational records and other related information such as U.S driver licence, SSN etc. I am afraid, if I choose to take any of these processes then, I have to submit above information, which can lead to investigation and expose my overstay and violation of student visa.

Again, you should openly tell them about your overstay and violation of status and unauthorized work when asked. There is nothing to be afraid of about exposing these things.

I worked without authorization throughout the years, in order pay billings and school tuitions. On I-9 form, I put my SSN and Driver licence required to get work. My SSN was issued under my middle name only and does not state any restriction to work. However when documenting on I-9, I put my full name including my middle name. Over the years, I filled for tax and had tax returns. I do not know, if my SSN is now referencing my entire name in their data base.

The one thing that would be worth looking into is what you put as your status on the I-9. I know you had sufficient documents to meet the I-9 documentary requirements, but furthermore on the I-9 part 1, there is a question where you have to select either citizen, noncitizen national, permanent resident, or alien allowed to work (prior to a certain date, the old edition of the form had citizen and noncitizen options combined into a single option). If you ever checked US citizen, that would be a huge problem, because false claim of US citizenship is a lifetime ban with no waiver. (If you had an old edition of the form where it had a single option for US citizen or noncitizen national, and you checked that, you could still get out of it if you can prove you were intending to say you were a noncitizen national, but that is not easy to prove.) If you selected some other option, like permanent resident (even though you weren't) or alien authorized to work (even though you weren't), you are fine.

[Maza]

Thank you all for giving me the detailed answers

[Maza]

Really appreciate all your answers.