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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