Article 2004-02-08
Knowledge that Could Help You in Processing Your Immigration Case
There are many times in the course of an immigration case that
individuals and even lawyers are confronted with questions concerning
whether certain items or information are needed to process the application,
whether they have established basic eligibility for the benefits
sought, or if the strategy they are using is correct. Below are
some of the situations which have bedevilled many in their immigration
cases.
Situation 1: You have filed your I-485 adjustment of status family
based application at the local immigration office, and it has taken
over a year to process your application. You now receive a notice
from the immigration office inviting you for an interview and listing
among other items for you to bring to interview a medical examination,
although you submitted one when you first applied. Do you have to
take another one? The answer is "no", if you submitted
one taken within a year before you filed the I-485 application,
and so long as the medical which you submitted does not disclose
a Class A or Class B condition (the examining physician would normally
tell you whether one of these conditions exist). A Class A condition
involves either a communicable disease of public health significance;
a physical or mental disorder and behavior associated with the disorder
that may pose or has posed a threat to the property, the safety
or welfare of yourself or others; or a history of physical or mental
disorder and behavior associated with the disorder which behavior
has posed a threat to the property, and safety, welfare of yourself
or others and which behavior is likely to recur or lead to other
harmful behavior; or drug abuse or addiction. A Class B condition
involves a physical or mental abnormality, disease, or disability
serious in degree or permanent in nature amounting to a substantial
departure from normal well-being, but does not include an individual
having only mental shortcomings due to ignorance or suffering only
from a condition attributable to remediable physical causes or of
a temporary nature caused by a toxin, medically prescribed drug,
or disease. Note that Class A tuberculosis is defined as tuberculosis
that is clinically active and infectious (communicable). Class B
conditions do not bar individuals from immigrating and the additional
medical is only to ensure that the Class B condition has not become
Class A.
Situation 2: You have been to the United States two times, the
most recent entry in the year 2000 with an H-1B working visa and
you have maintained your legal status up to this time. Your H-1B
employer has sponsored you for permanent residence, and you are
now ready to submit your I-485 adjustment of status application.
However, during your first trip to the United States, you were illegal
for five months between 1999-2000 because your former H-1B employer
ran out of work for you and you stayed in the States until you could
find another employer to process another H-1B for you. Assuming
that the basis of your permanent residence application, the labor
certification, was filed by April 30, 2001, making you eligible
for the benefits of section 245(i), which allows most persons with
periods of illegality to interview in the U.S. upon payment of a
fine amount of $1,000, would you submit the form I-485A fine application
along with the $1,000 payment? The current answer is "no"
- that the fine amount is unnecessary. Recently available U.S.C.I.S.
training materials state that status generally counts from the time
of last entry and that status during previous entries is largely
irrelevant except that previous periods of stay may be relevant
in determining whether the applicants are subject to other disabilities,
e.g. -- 3 or 10 year bars due to traveling outside the United States
and returning after having resided here illegally for 180 days or
one year after April 1, 1997.
Situation 3: You and your employer do not get along anymore. Your
employer has supported you thus far for your permanent residence
having gone through a labor certification processing and I-140 preference
petition for your permanent residence. You are aware that an employment
based alien with an approved I-140 petition can switch employers
under the portability provisions 180 days after the I-485 application
has been submitted to the U.S.C.I.S., so long as the new employment
will be in the same or similar occupation. You do not wish to stay
in the job one moment longer than necessary, but as a responsible
person, you wish to give adequate notice prior to leaving. So you
are contemplating giving your employer two weeks' notice before
the 180 days because you already have other employment lined up
in the same occupation and have already obtained free market employment
permission through an employment authorization card from the CIS.
Should you do it? The answer is "probably not" as the
employer would then still have time to stop the portability from
taking effect by withdrawing the I-140 sponsorship prior to the
180 days. The CIS recently responded that the withdrawal of an I-140
sponsorship is effective on the receipt date of the withdrawal notice
from the employer. I say "probably not" because there
is the possibility that you could inform your employer ahead of
time if you reach an amicable parting and know that your employer
will not send a withdrawal letter immediately.
Situation 4: You are an F-1 graduate student who will finish with
a Ph.D. next June. You wish to begin your immigration case at this
time because you want to have a maximum range of post-graduate options
available to you as soon as possible, and realize that your choices
will be limited without a green card. Looking at the available ways
to immigrate, the best way in your estimation is through a national
interest waiver (NIW), a category under which individuals can sponsor
themselves for permanent residence so long as they can prove that
their work is in the national interest. You have had 5 articles
and presentations in peer reviewed journals, work in the area of
nanotechnology, a hot field, and are able to get letters of recommendation
from associate and full professors, and a college department head.
You are contemplating either filing the I-140 preference petition
alone, or filing a concurrent I-140/I-485 application. Which one
should you pick? For most F-1 student cases, filing the I-140 preference
alone is the correct answer as a denial on the I-485 application
could bring about stressful complications to an F-1 student. NIW
I-140 cases are unfortunately backed up at CIS service centers,
which means much more delay when not filing concurrently (at the
end of December 2003, the Vermont Service Center was processing
NIWs received as of 5/28/02, Nebraska Service Center 3/24/03, Texas
Service Center 1/3/03, and California Service Center 5/5/03), but
unless you have a stronger case than the one described above, you
are probably better off filing the I-140 preference petition alone
and keeping valid non-immigrant status in the meantime. Of course,
the pendulum might swing the other way to filing the I-485 also
if the need for speed is great, or you will otherwise fall out of
status, or you change status to H-1B worker (an H-1B status provides
a more stable basis to file an I-485 application than an F-1 and
would be less susceptible to being damaged by an NIW denial).
Situation 5: You obtained a conditional asylum status through your
one child policy political asylum case in 2001. So far, that is
all you have received because you know that the CIS is only processing
final asylum grants for those whose cases were granted by April
19, 2000. In the meantime, your son is nearing the age of 21 and
worries that as an overaged son he will not be able to join you
under your asylum when you finally receive your grant of asylum.
Therefore, he, you and your spouse are all talking about the possibility
of having your son attempt to sneak into the United States with
the aid of a snakehead instead of waiting a projected 15 + years
to come the regular way through your sponsorship. What should you
do in this situation? The answer is "nothing at the present
time" because there is every likelihood that your son will
be able to join you when you obtain your final asylum even if he
is well over the age of 21 at that time. The Executive Office of
Immigration Review confirmed recently in a sheet titled "Conditional
Grants of Asylum Based on CPC Policies" that children in the
U.S. and outside the U.S. qualify for the protections of the Child
Status Protection Act (CSPA) if they turned 21 where a conditional
grant had still not been converted to a final asylum as of August
6, 2002, (the enactment date of the CSPA), or if the asylum was
final but the I-730 follow to join application was still pending
on August 6, 2002.
These are some of the situations which confront not only our clients
but many other individuals applying for permanent residence or other
benefits with the CIS. Hopefully the above allows readers to make
informed choices when confronted with similar situations.
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