IMMIGRATION LAW MONTHLY

Immigration Law Monthly

January 2007

Written by Henry J. Chang

I entered the United States in 2000 with a tourist visa (from Thailand and I was 17 at the time). My father, a permanent resident, filed a family-based petition for me. I have overstayed since that time. My petition was approved in June 2005 but somehow the approval notice got lost and I didn't find out about it until later. When I finally received the approval letter, it was too late to file for adjustment of status because they have reclassified me from 2A to 2B preference. On the other hand, I have been with my boyfriend (a United States citizen) for about 2.5 years and we are now considering marriage. I just want to know how my marriage might affect the approved petition. Also, I would like to know how my overstaying will affect the new petition.

The biggest concern I have is that you will probably be subject to the ten-year bar under INA §212(a)(9)(B), since you have been unlawfully present in the United States for more than one year. The good news is that, although the bar has already attached to you, it will not become effective until you have departed from the United States. If you remain in the United States and seek adjustment of status, the bar will never become effective.

If your priority date for the 2b preference were current, your failure to maintain status would not prevent you from seeking adjustment of status because you would be grandfathered under INA §245(i). However, since the family-based 2b preference is for unmarried adult sons and daughters of lawful permanent residents, once you marry your petition will automatically be revoked. But the 2b preference has a considerable backlog so you would not be losing much regardless.

On the other hand, if you marry your USC boyfriend, you may apply for adjustment of status under the normal INA §245(a), since spouses of United States citizens may seek adjustment of status despite the fact that they are not maintaining lawful status in the United States. Also, the immediate relative category is not subject to a visa backlog so you would not have to wait for an available visa number. If your boyfriend marries you, you can proceed with filing for adjustment of status right away and forget about the previous petition.

I came to the United States on an F-1 and received my H1-B immediately after my studies; I have not left the United States since that time. I was arrested and fingerprinted for "soliciting from a motor vehicle." Since it was my first and only offense, the judge "filed" the case and said that there would be "destruction of the complaint" after one year if there is no other arrest till then. The law of the state defines "filing" as meaning that the case will be postponed for one year and if the defendant behaves and is in no further difficulty with the law, the case will be dismissed. Am I excludable for crimes involving moral turpitude? Am I excludable under INA §212(a)(2)(D) [prostitution and commercialized vice]? Am I eligible for the petty offense exception? Should I deny that I was arrested or convicted in the visa application forms after the scheduled destruction of the complaint?

According to Paredes-Urrestarazu v. INS, 36 F.3d 801 (9th Cir. 1994), the Ninth Circuit held that the Board of Immigration Appeals could properly consider the circumstances pertaining to the arrest and disregard the state's criminal-record-suppression scheme. Therefore, the fact that prosecution of the case has been deferred does not necessarily mean that you will not be found to have been "convicted." In order to determine this, you need to consider the definition of "conviction" under the INA.

According to INA §101(a)(48)(A)(i), in cases where adjudication of guilt has been withheld, a noncitizen is considered convicted for immigration purposes if he or she has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt and the judge has imposed at least some form of punishment, penalty, or restraint on the noncitizen's liberty. If you admitted sufficient facts to warrant a finding of guilt as part of the process of "filing" of this complaint, you would still be "convicted" for immigration purposes.

Assuming that this is the case, we need to consider whether this is a ground of inadmissibility. I assume that you were convicted of soliciting the services of a prostitute rather than being a prostitute. If so, you are not inadmissible under INA §212(a)(2)(D) [prostitution and commercialized vice]. There is also a good chance that you would not be inadmissible under INA §212(a)(2)(A)(i)(I) [crime involving moral turpitude ("CIMT")].

The mere act of fornication is not a CIMT. Neither is the act of transporting a female with intent to engage "in illicit sexual intercourse with him" is not one for a crime involving moral turpitude, at least where coercion is not present. It seems likely that simply seeking the services of a prostitute would not be considered a CIMT.

Even if it were considered a CIMT, you might qualify for the petty offense exception. If: (a) this is your only offense, (b) the maximum penalty that could have been imposed was more than one year, and (c) the actual penalty imposed was one year or less of incarceration (you received none), the petty offense exception would apply.

I have a question on the H-1B Visa Reform Act of 2004. What will happen to an alien who obtained his H-1B before this Act? Will he be entitled to get 100% of the prevailing wage or can their employer still pay them 95% of the prevailing wage?

This is an interesting question. You are of course referring to the prior law where the employer could pay an actual wage that was within 5% of the prevailing wage level. This essentially acknowledged that there was a margin of error in the prevailing wage surveys. The H-1B Visa Reform Act of 2004, which was part of the Fiscal 2005 Omnibus Appropriations Act, changed INA §212(p)(3) to now require employers to pay 100% of the prevailing wage.

There was no specific grandfathering provision in the H-1B Visa Reform Act of 2004 to address previously approved petitions. However, the employer is not required to update the prevailing wage during the period of the employee's H-1B status. Once approved, the labor condition application ("LCA") is valid for the period of the H-1B. So while I cannot provide you with any clear authority for my opinion, I am not aware of any case where an employer was sanctioned for paying 95% of the prevailing wage, after the enactment of the H-1B Visa Reform Act of 2004, in compliance with a previously-approved LCA.