Overcoming Immigration Violations When Seeking an Employment-Based Green Card

Foreign employees trying to navigate through the immigrant visa process can hit some waves along the way. A short period of overstay in the distant past, a week of unauthorized employment, a minor violation of the terms of a nonimmigrant visa, or a misdemeanor conviction can cause many sleepless nights for a foreign worker. For many with one of these problems, they must wonder if the uncertain trip to green card status is worth the voyage. Will the immigration violation result in a denial of the green card application? Or worse, will it result in deportation? This article briefly addresses common issues facing foreign workers applying for U.S. permanent residence and discusses some of the more powerful exceptions that forgive immigration violations

Overstay

The last step in the green card process for foreign workers in the United States is the submission of an application for adjustment of status. Although the process is finally concluding at this point, there are still potential perils for those with certain immigration violations. For example, the Immigration & Nationality Act (“INA”) § 245(c)(2) prohibits a foreign employee from adjustment of status if the worker has “failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States.” A person fails to maintain continuously a lawful status if he or she remains in the United States beyond the period of authorized stay, or put another way, overstays.

Despite the above-stated general rule, overstaying is not always fatal to an application for adjustment of status. Indeed, INA § 245(k) allows many employment-based applicants for adjustment of status to receive U.S. permanent residence, regardless of a past overstay, if they have not overstayed for an aggregate period of 180 days since their last lawful entry. Therefore a short overstay of less than 180 days may not prevent adjustment of status in many cases. In other cases, overstaying may be excused when it occurred through no fault of the foreign worker or for technical reasons. One example where an exception would apply is a violation caused by inaction of the U.S. Citizenship and Immigration Service (“USCIS”), such as a case where a foreign worker shows that he or she filed a timely request to maintain status, but the USCIS has failed to act on that request. 8 C.F.R. § 245.1(d)(2)(ii).
Unauthorized Employment or Violation of the Terms of a Nonimmigrant Visa

INA §§ 245(c)(2) & (c)(8) prohibit adjustment of status if a foreign worker has a history of unauthorized employment. Section (c)(8) also prevents adjustment of status if the foreign worker has ever violated the terms of a nonimmigrant visa. There are many ways a person can violate the terms of a nonimmigrant visa. A foreign worker may, for example, violate the terms of his or her visa by performing duties not specified in an approved H-1B petition, working at a location not approved by the USCIS, or leaving a sponsor’s employment without first receiving the USCIS’s approval of a request for a change of status or a change of employer.

Fortunately, the ameliorative provisions of INA § 245(k), discussed above, also apply to cases of unauthorized employment and violations of nonimmigrant visa terms. Thus, for many foreign workers seeking a green card, unauthorized employment or visa violations occurring for less than 180 days since the last lawful entry will not act as a disqualification for adjustment of status. Some foreign workers with a history of unauthorized employment or visa violations lasting more than 180 days can eliminate the negative consequences of the transgression by leaving the United States and returning in valid nonimmigrant status. There are also several other exceptions to the general bars found in INA §§ 245(c)(2) & (c)(8) for individuals with violations that occurred through no fault of their own or for technical reasons.

Misdemeanor Conviction

Some foreign workers face a potential obstacle to gaining green card status based on the commission of a crime. Some of the more common crimes committed include convictions for driving under the influence (“DUI”), petty theft or shoplifting, and disturbing the peace. The crime may be the result of a long-past youthful transgression or a lapse in judgment in adulthood. Regardless of the reason for the act, the immigration consequences must be dealt with.

One type of conviction that can bar adjustment of status is a Crime Involving Moral Turpitude (“CIMT”). Pursuant to INA § 212(a)(2)(i)(I), applicants are ineligible for visas if they commit a CIMT, other than a purely political offense. Generally speaking, a CIMT is conduct that is considered contrary to community standards of justice, honesty, or good morals. Elements of a CIMT usually involve fraud, larceny, or intent to harm a person or a thing. 9 Foreign Affairs Manual 40.21(a) N. 2.2. The definition of a CIMT is broadly applied by the USCIS and Immigration Courts, but there are defenses.

First, many crimes lack the necessary mental state, such as intent, to be considered a CIMT. An example of a crime that usually lacks the required mental state to constitute a CIMT is a simple DUI.

Second, even if a crime is considered a CIMT, there are exceptions that may allow adjustment of status. One exception applies to youthful crimes where the offense was committed when the person was under 18 years of age, and the crime took place (and the person was released from any imprisonment or confinement) more than five years before the application for U.S. permanent residence. INA § 212(a)(2)(A)(ii)(I). Another exception occurs for petty offenses when the maximum penalty for the crime did not exceed one year of imprisonment and the person was not sentenced to more than 6 months of incarceration. INA § 212(a)(2)(A)(ii)(II).

This article touches on just a few examples of immigration violations committed by foreign employees that may be excused under a variety of exceptions found in the law. The point of this discussion is to demonstrate that even though the journey to U.S. permanent residence may involve hazards, with a well-planned legal strategy, obstacles can often be overcome. The law firm of Garg and Associates has experienced immigration attorneys that are dedicated to helping immigrants and their employers succeed in reaching their immigration goals.