If Immigrating Spouse Worked Illegally in the U.S., Can Their Work Be Counted Toward 40 Quarters?

When a U.S. citizen marries a foreign national who came to the United States on a nonimmigrant visa but overstayed, that's normally a better situation than it might sound like. That's because, if the immigrant wishes to apply for a green card without leaving the United States (using the process known as "adjustment of status") the lawful entry will likely let them do so.

In fact, if the foreign national worked in the United States, that could offer one more benefit, allowing the couple to avoid filling out an Affidavit of Support (Form I-864) proving that the U.S. petitioner is capable of financially sponsoring the immigrant. This exemption would be based on the two members of the couple having already racked up 40 qualifying Social Security quarters between them, during their marriage. (For details on this and other exceptions to the I-864 filing requirement, see Who Is Exempt From Submitting Form I-864 Affidavit of Support.) This article will discuss the details.

Why Is It Worth Seeking an I-864 Exemption?

For starters, filling out I-864 is a long and tedious process. What's more, having to prove the U.S. petitioner's financial capacity is a big hurdle for couples whose income barely reaches the required levels per the U.S. poverty guidelines. Then there's the future to consider: if the relationship were to fall apart, the U.S. sponsor might nevertheless still be on the hook to support the immigrant. All of which is to say, most couples find it worth avoiding submitting this affidavit if you can. (To prove your exemption, you'd need to fill out a shorter form, the I-864W.)

Why Is Legal U.S. Entry So Important in This Analysis?

A lawful entry to the United States wipes out two grounds of inadmissibility that are a common problem for foreign nationals hoping to adjust status based on marriage to a U.S. citizen, namely:

• excess unlawful time in the United States, and
• unpermitted U.S. employment.

By way of background, adjustment of status is one of two possible green card application procedures. The second one is called consular processing, which involves leaving the United States as one of the last steps in the process in order to attend an immigrant visa interview with a U.S. Department of State official. But most applicants who have the choice to adjust status take it, for good reasons.

Foreign nationals who entered the United States illegally and are married to a U.S. citizen are less favored by the law. They normally have only consular processing as their choice of application procedure. Once they leave the United States, numerous grounds of inadmissibility can be a problem, and bar their return for many years or permanently.

Key Issue in Whether Unlawful Employment Counts for I-864 Purposes: Was It With a Valid SSN?

Now, back to the matter of the foreign national's work history in the United States. U.S. immigration laws do not require, in the case of qualifying for an exemption from the I-864 Affidavit of Support requirement, that the noncitizen's work have been done with authorization from U.S. immigration authorities. The laws simply require that the applicant satisfies the requirements of the Social Security Administration (SSA) regarding credit for work done. To be credited with work quarters, according to the SSA, the work needs to have been performed in the name of the person whose number it really is.

It sometimes happens that a foreign national obtains a valid Social Security Number (SSN) during time in the United States on a nonimmigrant visa; perhaps on a work visa such as an H-1B. Or perhaps they came to the United States on an F-1 student visa, then applied to USCIS for work authorization during their years in school.

If so, any work done using that valid number should count in tallying up quarters for Social Security purposes. (The foreign national will also need to have earned more than a minimum amount per year; and this amount changes every year, so do some careful checking.)

To check SSA earnings records, each member of the couple will need to go to the My Social Security page of the SSA website and open an account. (Your lawyer, if you eventually go to one, will be very interested to see the printout of what you find here.)

Work Done Under a False SSN Will Not Count for I-864 Purposes

If the foreign national used another person's Social Security Number or a false number in order to work, this will not count toward the 40 quarters. It would be worth consulting an experienced immigration attorney to see whether there is a way to fix this situation, and whether it brings up any other legal issues in your case.

Getting Legal Help

U.S. immigration laws have many ways of punishing someone for illegal work, but in the case of someone who worked with a valid Social Security Number, entered the United States legally, and is marrying a U.S. citizen, it's unlikely to affect the green card case. Still, you really should try to save enough money to see an immigration lawyer for a full analysis. (See How Expensive Is an Immigration Lawyer?) This is a tricky area of the law, and a small difference in one's personal and legal situation can make a big difference in the result.