Q & A January 2003

Q & A 1 2 3 4


Dear Mr. Lee:

I got the Green Card in 1996, and committed theft in California in 2001. I resided in California, and currently reside in New York.

  1. Before I apply for naturalization, I would like to apply for Green Card extension (expiration date is in 10/06). Will there be problems because I apply in a different region, as opposed to the original one, and because of the crime I committed?
  2. I had an attorney for my theft case. He changed my crime to disturbance of the peace. When I fell out the forms, should I put down "theft" or "disturbance of the peace"?

Dear reader:

  1. The control of immigration is federal, and individuals must generally file immigration applications to the INS Service Center or district office having jurisdiction over their place of residence. There should of course be no problem with applying in a different region from that in which you received your permanent residence. If the INS requires your original file, it will transfer your file to the immigration office at which you are applying for a benefit. Whether individuals could have a problem with their immigration status because of crimes depends upon the magnitude of the crime and whether they are removable offenses.
  2. A disposition on disturbance of the peace is not a removable offense. You asked whether there would be a problem if you applied for a green card extension before applying for your naturalization. The I-90 Form (Application for replacement permanent residence card) does not have a space for listing crimes. The N-400 (application for naturalization) form in item D asks the questions "Why were you arrested, cited, detained, or charged?", and "Outcome or disposition of the arrest, citation, detention or charge." You could put down "Allegation of theft" to the first question and "Disturbance of the peace" to the second. You should of course attach a copy of the disposition to your naturalization application.

Dear Mr. Lee:

My brother is in China. The year before last year a Chinese restaurant petitioned for him under the third preference employment. Labor Certificate was approved on 2/3/01, and Form I-140 was approved on 1/2/02. The National Visa Center sent the case to Guangzhou Consulate on 5/8/02.

  1. When will the consulate send my brother the interview notice? What document should he bring to the interview?
  2. I got my Green Card through Labor Certificate, too. My Form I-140 approval notice shows the Green Card number, but my brother’s does not. What is the difference?

Dear reader:

  1. By the date of publication of this question, the consulate should already have sent your brother a notice for interview as the National Visa Center (NVC) sent his case to the consulate over 7 months ago. The consulate in Guangzhou as with all consulates throughout the world is delaying all immigrant visa cases to ensure that adequate security clearances have been received before issuing the immigrant visas. In our experience, this has caused delays in scheduling interviews ( normally 3-4 months from the time that the NVC sends a case to the consulate, now 3-7 months) and in issuing visas after the interviews (2-4 months). The NVC has already sent a check list of documents which your brother will be expected to have at the time of interview. These include a valid passport, notarial birth certificate, marriage and divorce decrees (if applicable), military record (if applicable), police clearance certificate(s), medical, green card photographs, and offer of employment. As this is an employment-based case for a cook, your brother should also bring original evidence of his prior experience in cooking along with current financial information on the petitioning restaurant.
  2. Most I-140 approvals do not show a "green card" number. It should be clarified that a green card number does not become a green card number until the individual is approved for permanent residence. Prior to that time, the INS may assign a file number to an individual who is of interest to the agency, usually in connection with a prior record with the INS, e.g. being under exclusion, deportation, or removal proceedings, or entering the U.S. with an exchange visitor visa. If a number is shown on an I-140 approval, it merely reflects a file number by the INS which may later turn out to be a green card number if the case is ultimately approved. Generally speaking, an I-140 approval would not have a file number on it.

Dear Mr. Lee:

I, a U.S. citizen, petitioned for my sister and her family (husband and son) in 1990. The son was only 10 years old then. When the priority day became current in 7/02, only my sister and her husband were notified to fill out the forms and pay the visa fees. The son, now 22, was not included. Currently the National Visa Center (NVC) has sent the case to Guangzhou Consulate.

  1. I think my nephew should be able to immigrate with his parents. He should benefit from “The Child Protection Act”. Am I right in thinking so?
  2. Is it INS or NVC that is going to adjust the beneficiary’s status? What should I do?
  3. If Guangzhou Consulate sends my sister and her husband a notice for interview, should they ask for postponement in order that my nephew won’t lose the opportunity to immigrate with his parents?

Dear reader:

  1. The rules of the of Child Status Protection Act have not been set in regulation although the INS and Department of State have attempted to clarify their thinking in memoranda. What is clear is that in an ongoing case past August 6, 2002, the aged out child who cannot be considered a child for purposes of the CSPA will be entitled to the priority date of his parent's case. The procedure by which such an aged out child will immigrate to the U.S. will be established in future rulemaking. Whether an aged-out child can still be considered a child who can immigrate at the same time as the parents will depend upon the final reading of the section of law, Section 8 (dealing with effective date) and the amount of time that the child is over the age of 21 prior to August 6, 2002 (the enactment date of the CSPA) with credit given for time that the I-130 petition was pending with the INS. Ultimately your nephew will be able to take advantage of the CSPA, and the only question is under which route.
  2. Adjustment of status is reserved for those individuals who are present in the United States. Individuals who are overseas are given immigrant visas to come to the U.S.. As the National Visa Center has already sent the case to the American consulate in Guangzhou, most communication concerning your sister and her family should be directed to the consulate.
  3. If your sister and her husband wish to postpone their immigrant visa appointments, they are allowed to do so, but must apply for the immigrant visa within one year of the visa appointment date to insure that they are not deregistered by the consulate. They may wish to ask the consulate for its advice on how to handle the case of their 22 year-old son. However, whether the consulate can give any type of dependable advice at this time is questionable. I requested procedural advice from the Department of State twice in the past three months without response.

Dear Mr. Lee:

I am a permanent resident. My Chinese restaurant business didn’t go well, so I have had credit card debt. Now I am jobless, and can’t pay for the debt.

Question: If I apply for bankruptcy, how will it affect my naturalization application in the future?

Dear reader:

Your applying for bankruptcy should have no effect upon your later naturalization application. Such is not a ground to deny naturalization. There are no questions on the N-400 naturalization application concerning bankruptcy. It is not illegal to be bankrupt. Neither is it an indication of bad moral character. It has been held by a U.S.District Court in Hawaii in 2000 that unpaid debts owed to individuals, even when subject to a civil court order, are not by themselves sufficient to establish lack of good moral character. Even when discussing receipt of public welfare, the INS has stated that such receipt would only affect good moral character when it amounts to affirmative misconduct resembling fraud. Being poor is also not a bar to naturalization.

 

Copyright © 2003 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.