Been running a small business while on H1B for last three years and PD is current to file I-485

[santaclara11]

I would like to know what the options are for the tricky situation my brother is in. He took some bad advice from a friend and ran an LLC for some contract work on the side while working for an employer sponsoring his GC, on an H1B visa. He didn't realize he would have to submit three years of tax returns, and he paid self employment taxes. He anticipates his LC will be approved early next year, and since he's in EB2 and the PD dates are current for "rest of the world", I think he'll be able to file for the AOS next year also. I'm in Canada so family sponsorship isn't an option.

1. Can he hold off on filing the I-485 and just keep extending his H1-B visa year by year until he has enough tax returns to submit? He does have to travel out of country a lot (roughly 6 times a year) for work, so it's reasonable for him to say the travel restriction would interfere with his job duties.

2. Can he get away with not submitting tax returns to USCIS for the AOS? Or is that a gamble?

3. If he cancels the GC process and his H1B expires, can he immediately come back and work on a TN visa (he's Canadian), then try to get another H1B in a year, or does he have to stay out of the US for a year?

4. How would "180 days" for purposes of section 245 work if he was working on contracts sporadically over the last three years? He's stopped now, but in total, he likely put in less than that number of actual days on the projects. He's coming back from another business trip soon, so does that reset something for purposes of days of unauthorized work?

5. Any other options?

Thanks!

[JoeF]

He is out of status, due to unauthorized work.

An I-485 will most likely be rjected.

He needs to see a good immigration lawyer ASAP!

[Belle]

First, who says he needs to submit three years of tax returns? Does the USCIS require it? Where? If his lawyer wants it, it does not really mean the USCIS has to have it. Sometimes the lawyers (good ones) simply ask for documents to make sure they are not missing anything - like that unauthorized self employment of his - so they can address it appropriately. And sometimes lawyers (bad ones) want to submit documents that are irrelevant to the case - not sure the USCIS officers appreciate it. Second, yes, the employment was unauthorized and it was a violation of H1 status, however, every time he enters the country on H1, his prior violations are generally forgotten, so if he enters on H1 and maintains status since his last entry, he should be able to file I-485.

What he needs to do is to shcedule a paid consultation with a couple of good immigration lawyers. Explain the situation to them, and see what they come up with.

[santaclara11]

Thanks Belle,

Yes he's likely going to consult Murthy Group.

His company's law firm is definitely very thorough with paperwork so it's very likely they're going to ask for the tax returns. He wouldn't want the company he works for to know about this contract stuff, even though the contract work is for a completely different field of technology and not for a competitor.

Is delaying the adjustment of status a few years after he has the I-140 and the current priority date a problem? Can he get 1 year extensions on his H1-B visa if his priority date is current, he has the I-140 and he hasn't filed the I-485 yet?

Thanks!

[Belle]

Your friend needs to be careful - the company may have policies that he is vioating by not letting them know about his work. I had to get an approval from my company to work on a small project that was in a completely different industry and in a different country to boot. He needs to check.

I don't think delaying of AOS is going to help with the I-485 in any way. As long as he does not work on the side after entering, he should be fine. Also, please understand that the lawyer cannot tell his employer any of the personal stuff he reveals when preparing for the I-485 filing - even if the lawyer is paid by the employer. He just needs to be very explicit that he knows his rights and what the responsibilties of the lawyer are.

[santaclara11]

In case someone's reading this in the future with the same question, the attorney he consulted said basically the same thing as Belle did. If he leaves the US, returns (with a new I-94 card), and discontinues the unauthorized employment the prior work won't be considered by the USCIS.