I overstayed—How can I adust my status?


Many of my clients that are overstays, meaning they entered the country legally and just stayed longer than they were allowed to have worked illegally. Many have been here for ten (10) plus years so they had to work to support themselves. Eventually they get married and want to start the process to get a green card. I know that they are afraid to be up front with me about the fact they are working illegally. Some of them choose to lie to me and plan on lying to USCIS during the process. This is dangerous.

In an application to adjust status (obtain a green card) the act of working illegally is not fatal to the application. At this point, the only thing USCIS cares about is if you have paid all your taxes. That is the question that will come up. Many of my clients ask me “how much do I have to tell them I am making”. I can’t help you lie or beat the system. My advice to you has to be to tell the truth. While working illegally, by itself, will not cause your application to be denied, getting caught lying will almost certainly do so.

I can tell you this, whatever you tell USCIS it better pass the “smell test”. Many of my clients tell me that they only made $15,000 annually or so. I then ask them what their rent has been and I get an answer like $1,100 per month. Do the math. $1,100 per month over twelve months is $13,200. If you only made $15,000 then you are telling me you paid for food, utilities, transportation, and entertainment for an entire year on $1,800. That is extremely hard to believe. If I don’t believe it, USCIS won’t either and you will be subject to further scrutiny or a possible investigation. Do yourself a favor, before coming to see me go to an accountant and get your taxes up to date. You know, the government actually has provisions that allow you to file and pay your taxes if you are illegal. There is an IRS publication on this very issue and any good tax accountant can find it.

Another question I get regularly is “you know, I have been here for so many years I forgot how much I made.” This is understandable. You are never asked to do the impossible. Gather as many documents that can help your accuracy and estimate what you don’t know for sure as best you can. Again, remember the goal. When the USCIS officer asks you whether you have filed and paid all your taxes you want to be able to say yes and you want it to be truthful. The amount of taxes due on people making less than $20,000 per year, as many of my clients do, is relatively small. It is not worth the risk to lie and not pay these amounts. Winding up in immigration court is far more expensive than paying the taxes in the first place.

©2011, Thomas N. Toscano, Esq. Mr. Toscano is a licensed New York attorney with offices in Glendale and Great Neck. 516-214-0473.