Q & A 2002
Q & A 1 2 3
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Dear Mr. Lee:
In 1978, my sister got her U.S. green card. In 1979, my sister
went to Japan, got Japanese citizenship and has lived there till
now. In 1988, I became a U.S. citizen. I have lived in California.
In 1991, I petitioned for my sister to immigrate. The petition was
approved. During the waiting period she has visited U.S. 4 times
with the visa waived. In 8/99, her son (born in Japan in 1984) entered
to study with a student visa. He has returned to Japan on winter/
summer vacations. In 12/02, my sister received OF-230 Part I, optional
form, Application for Immigrant Visa and Alien Registration. I received
the I-864 Affidavit of Support.
- Is it against the law that she has visited the
U.S. again and again during the period waiting for quota? Any
remedy?
- Can I continue this petition for her and her husband
and her son?
- If I continue this petition for her and her husband
and her son, can her son continue to study in the U.S. and go
back on vacations?
Note: As per another letter by the same reader:
- In 1978, my sister got the green card, using her
Chinese name.
- When she filled out the form for the visa waiver,
she put “No” to both Questions: Has anyone ever filed an immigrant
visa petition on your behalf? Have you ever indicated to a U.S.
consulate a desire to immigrate to U.S.
Dear reader:
- You have noted that your sister did not tell the
truth at the time that she filled out the form for visa waiver
-- that she answered untruthfully on whether anyone had ever filed
an immigrant visa petition on her behalf and whether she had ever
indicated to a U.S. consular officer a desire to immigrate to
the U.S.. Those are of course offenses against the immigration
laws. If the subject comes up at the time of her immigrant visa
interview, she could possibly point out (if factual) that she
never overstayed her period of visit to the United States, and
that therefore, the misrepresentations were not material. At such
point, it would be up to the U.S. consular officer as to what
further action he or she would take on the application. An appeal
of a negative determination could be made to the Visa Office of
the U.S. Department of State.
- Yes.
- Inasmuch as her son has a valid F-1 student visa,
he could most likely continue studying in the U.S. and returning
to Japan for vacations. I do note that an F-1 student is supposed
to exhibit continuing non- immigrant intent. There is some danger
that he may be questioned on this score when he reenters the U.S.
by an INS inspector, but the more probable outcome is that he
would be admitted without questioning so long as he has proper
documentation and a valid visa.
Dear Mr. Lee:
My brother’s asylum case is in court. Can I, a U.S. citizen, petition
for his immigration using 245(i) without hiring a lawyer? Should
he withdraw his asylum case? Besides the I-130, what other form
do I need to fill out? During the waiting period of 12 years or
so, can he apply for work authorization?
Dear reader:
245 (i) is not an amnesty. It does not confer employment authorization,
travel privileges, speed up quotas, or terminate immigration proceedings.
It allows an individual at the end of his or her case for immigration
to apply for adjustment of status here before the INS rather than
traveling overseas to interview for permanent residence with the
U.S. consular officer. 245 (i) became much more important after
the passage of IIRAIRA in 1996 which barred most individuals from
reentry the United States for three or ten years if they had stayed
illegally in the U.S. for 180 days or one year after April 1, 1997.
In your brother's case, you can file an I-130 preference petition
on his behalf -- however, at this time, the law only allows {245
(i) benefits to those who filed either an immigrant visa petition
or labor certification based application by April 30, 2001. Unless
your brother is grandfathered by such an application, or the law
changes to update the eligibility date of {245 (i), your brother
would not be able to adjust his status. In the event that he is
eligible, the waiting time will most likely exceed ten years. During
that time, your having applied for him under this category will
not terminate his court proceedings. If he has a bona fide political
asylum case, he should continue with such application. In addition,
if he has work skills which can allow him to be sponsored for employment
based immigration, he would be able to immigrate much faster than
under your petition.
Dear Mr. Lee:
A. I obtained asylum based on the “One Child Policy”. Now I am
eligible to apply for my family to join me.
- What is their status when they come? Will
their passports be stamped as refugee at the airport?
- When can they apply for the green card? How? What
form?
- When will they receive the actual green card? Will
their passports be stamped as a permanent residence first?
- If they return to China before they obtain their
green cards, what are the restrictions? If thy travel other than
to China, what are the procedures?
B. INS has sent me a letter to say I can apply for the green card
at the end of July this year.
- When can I do the medical check-up, fingerprinting,
interview and obtain the green card? Will my passport be stamped
as a permanent resident first?
- A newspaper article I read once had it that our
interview is a “formal interview”. Does it mean I only need to
fill out all the forms or I must go see the INS officer?
- Now I can transfer my case to Florida. How much
faster will it be for me?
Dear reader:
- When your family enters as dependent asylees, they
will be given I-94 cards by the INS reflecting their asylum status.
- One year after the date indicated for asylum on
the I-94 cards, your family can apply for adjustment of status
by sending I-485 adjustment of status applications to the INS
Nebraska service center in Lincoln, Nebraska.
- It is difficult to state when your family members
will be able to obtain their permanent residence cards. There
is a 10,000 number limit per year for individuals who can adjust
status through political asylum. Current projections for new applications
are that the waiting time will be 10 years from the date of application.
As they will be asylees, INS officers will not expect to see valid
passports at such time, and INS will most likely issue other documentation
instead of stamping on the passports to indicate the permanent
residence grant.
- Returning to the homeland of persecution could
bring problems with the INS upon reentry. An argument for their
return of course is that they are not the principal asylum seeker
and so should not be barred from returning to the home country.
On the other hand, the counter argument is that the INS granted
asylum dependent status because the family was being persecuted
and if there is no longer any fear of actual persecution upon
return to China, asylum status should be terminated.
- You can perform the medical check up, fingerprint,
and interview when you receive further notices from the INS after
you have sent in the application for permanent residence to the
INS Service Center in Nebraska.
- Whether the INS decides to interview you or not
is in the discretion of the agency. If the Nebraska service center
believes that there are questions which should be resolved, it
will transfer your application to the local INS office for interviewing.
- If your case is finally adjudicated favorably by
the Nebraska service center without transferring to the local
office of INS, it will not make any difference in which state
you reside. On the other hand, if your case is transferred to
the local district office, the speed of interview will be determined
by the current schedule of that office. No one can state how much
faster you will take to process your case in Florida in that circumstance,
as the timing will be determined at a future date when INS takes
your case out of the backlog and begins to work on it.
Dear Mr. Lee:
In 1998, my parents divorced. My father has custody of me. In the
same year, my father married and came to the U.S.
In 2002, my step-mother got the green card and petitioned for my
father and myself. It was granted. Now I am 19, a college student
and a permanent resident.
- If I have scholarship and I have a certain amount
of money, can I apply for my natural mother to visit from overseas?
- When I am 21 and naturalized, can I petition for
my natural mother’s immigration based on my income?
Dear reader:
- You can apply for your mother to visit you, but
the decision of whether to grant your mother the B-2 visa is in
the discretion of the American consulate officer. To pass financial
scrutiny, your scholarship and bank accounts should be sufficient
to reassure the consular officer that your mother will not have
to work illegally during the period of time that it is contemplated
she will be staying in the United States. I do note that it may
be difficult to convince the consular officer to allow your mother
to visit you where the only support is through you. It is more
likely that the consular officer may relent and allow your mother
to visit you at the time that you are set to graduate.
- When you are 21 and naturalized, you may be able
to petition for your mother as long as your income is sufficient
to assure the U.S. consular officer that she will be able to be
supported on a permanent basis when she arrives in the U.S.. You
would have to fill out Form I-864.
Dear Mr. Lee:
In 1995, my friend divorced overseas. Later she came to visit
and married a green card holder and got her green card. She and
her ex-husband have a son. She has custody of the son. When she
applied for immigration, she did not note that she had a son. Now
she wishes to petition for that son.
To apply with INS or U.S. Consulate? How? How long?
Dear reader:
Your friend would have to apply on form I-130 with the INS service
center having jurisdiction over her place of residence. If the INS
makes a favorable adjudication, it would then forward the approved
petition to the National Visa Center, a halfway house between the
INS and the American consulate. Following processing at the National
Visa Center, the case would be transferred to the American consulate
for consular processing. At that point, your friend may or may not
have to clarify with the American consulate why she did not put
down that she had a son at the time that she applied for her immigration.
The speed of an application for the son may very well depend upon
the age of the child and who is eligible to petition for him. If
the marriage was celebrated before the son turned 18, the present
husband is eligible to petition for the son as a stepchild. In such
circumstances, the processing time would vary depending upon whether
the husband is still a permanent resident or is now a U.S. citizen
or whether he becomes a U.S. citizen in the future, and the age
of the child at the time of the final processing. Where the petitioner
will be your friend, such factors as the age of the child and whether
your friend becomes a U.S. citizen will determine the speed of processing
of the son.
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