Q & A June 5, 2005

Q & A 1.


Q&A 1.

K-1 Visa Holders Not Adjusting Status Thru Sponsors Have Difficult Time

Mr Gao asks:

I came in U.S. under K-1 visa in 2001. However, I did not get married with the US citizen and did not apply any petition at the time. In 8/04, my sister who is a US citizen submitted a petition for and we received a receipt. My questions are:
1. If I am captured by the immigration, will I be deported to China?
2. I have a tax id. Can I ask my employer to file W2s for me or do I still have to file cash income myself?

Mr. Lee Answers:

1 The difficulty with individuals who enter the U.S. under K-1 visas as fiances of U.S. citizens and do not marry the sponsoring U.S. citizen is that there is generally no relief available under U.S. immigration laws allowing the K-1 to become a permanent resident or gain any legal status. Your sister's petition on your behalf will not assist you as the waiting time under that category is presently 12 years and U.S.C.I.S. does not allow individuals to remain legally in the States on that basis alone during the waiting period. You are also not allowed employment permission based upon the petition. If you are caught by the U.S. Immigration and Customs Enforcement (U.S. I.C.E.), you are entitled to a hearing before an immigration court. However, since you have already been in the U.S. for over one year, you are not eligible to apply for political asylum unless the circumstance prompting you to apply for political asylum happened after you entered the U.S. and was or is close to the time that you made or make your application for asylum. At the hearing before an immigration judge, you may be given voluntary departure to leave the country instead of an order of removal. However, under present law since 1997, you would be barred from coming back for 10 years as you have resided in the United States illegally for least one year after April 1, 1997. To return before the 10 year time period, you would have to file a waiver request with the U.S.C.I.S.. If you are applying for a nonimmigrant visa, you would file form I-192 Application for Advance Permission to Enter as a Nonimmigrant. If applying for an immigrant visa, you would file Form I-601 Application for Waiver of Ground of Excludability

2 It is against the law for individuals to hire illegal aliens. Even if you have a tax identification paper, that does not make you legal for employers to hire you. Employers may still face fines if audited by U.S.I.C.E. and there is proof that they have been hiring illegal aliens. Conversely however, employers are required under the tax laws to file W-2's for their employees. Employers who hiring illegals are therefore in a quandary and your attaining the tax ID does not solve your employer's situation.

 

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The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.