Q & A August 1, 2004

Q & A 1. 2.


Q&A 1.

Submit application 90 days before five years of residency

Dear Mr. Lee:

I am 71 years old this year. I have been to the United States three times and have lived here during these time frames: from Dec. 23, 1995 to Oct. 23, 1996, from Oct. 23, 1998 to Sept. 3, 2001, and from Feb. 22, 2002 to present. I am still in the U.S.

My daughter (an U.S. citizen) has applied for my green card, and I received on of January 17, 2001. Until now, I have had my green card for more than three years and the total time I spent living in the U.S has exceeded 31 months.

  1. Until how much longer (living in the U.S.) before I will be able to apply my U.S. citizenship?
  2. I have heard that, in order to become an U.S. citizen, one must be able to speak, read and write basic English language and pass the exam. Because of my age and severe illness (high blood pressure for years, currently having encephalemia and heart disease), and with very slow mind, I have lost my ability to study English and can not pass the English exam required. I am wondering based on my current physical and mental ability and with doctor’s letter to certify my condition, is it possible to have the required English examination waived and still become a citizen.
  3. Regarding the proof of my physical condition, can I submit many records of diagnostics done on me issued from Chinese hospitals, which having been verified by doctors’ written note, and notarized and stamped?

Xie,
Florida

Dear reader:

1. A permanent resident who obtained immigrant status like you must wait five years to apply for citizenship. However, the law does provide that you can put in an application 90 days before the five-year mark. Looking at your particular situation, you received your permanent residence (according to your letter) on January 17, 2001. Time for naturalization purposes begins to be counted from that day. You are allowed to apply five years from that date, January 17, 2006, and the law further allows you to put in an application 90 days before that date. As of January 17, 2006, you must have acquired at least 30 months of physical residence in the U.S. with no absence being one year or more in length. Absences of six months and more will raise questions to an immigration examiner as to whether you have maintained your residence for naturalization purposes, but may be explained if there are good reasons. Thus far, you have accumulated approximately 9 months from January 2001 to September 2001 and 26 months from February 2002 to April 2004. So you have already satisfied the physical residence requirement by this time.

2. The immigration law allows exemptions from naturalization testing in English and/or history/government for individuals with disabilities. Such an exemption is sought through form N-648 for individuals who can demonstrate that they suffer from a medically determinable disability or impairment or a combination of impairments that result in functioning so impaired that it prevents them from learning or demonstrating knowledge in English and/or U.S. history and government. Old age does not qualify as a sole basis for the exemption. U.S. registered medical and osteopathic doctors and clinical psychologists can complete the form N-648 giving full and complete descriptions of an individual's diagnosis; a thorough explanation of how the condition impairs the functioning of the individual so severely that he/she is unable to learn or demonstrate knowledge of English and/or U.S. history and government; and his or her conclusions as to whether the individual is able to learn or demonstrate knowledge of English and/or U.S. government and history. In looking over your complaints, high blood pressure and a slow mind would not appear to be good reasons for a medical exemption. However, a combination of high blood pressure, sclerosis of the brain and heart disease may be a valid reason if related to the capacity to learn and if so certified by the appropriate medical professional.

3. Your medical records in China may be added in support of the diagnosis by a the U.S. licensed medical professional to support your exemption request but cannot substitute for the opinion of the U.S. registered medical professional.

Q&A 2.

U.S.C.I.S. requests an interview does not mean there is a problem with your case

Dear Mr. Lee,

My political asylum case was filed in 1995, and was granted in 1997. I submitted the I-485 permanent residence application in 7/1998, and received a letter from the Nebraska Service Center in 4/2003, informing that my case was sent to the local office in New York.

Questions:

  1. Why was it that my case was transferred to the CIS’ local office? Is there any problem?
  2. It is normal, how much longer will my case be processed by the local New York office?
  3. After I become a permanent resident, can I visit other countries, including China, with a reentry permit only, since my China-issued passport has been expired, and China Consulate didn? allow me to renew it?

Zhang
New York

Dear reader:

1. your case has most likely been transferred to the CIS local office in New York in order for you to be interviewed. Having an interview does not mean that there is a problem with your case, and there are many reasons for which persons can be asked to interview including the difficulty of obtaining good fingerprints. We have even had a case in which the parents were waived of the interview requirement while their five year old child was scheduled for interview.

2. cases which are transferred for interview in New York usually have to wait 9-12 months for an interview.

3. an integral part of an asylum adjustment case is still having a fear of being persecuted upon return to the home country. If an immigration examiner is not convinced that the fear remains, he/she may deny the adjustment of status application. After an individual obtains permanent residence through asylum, it would be difficult for the government to take away the residence status unless it was able to prove that the permanent residence should not have been granted in the first place. Inasmuch as circumstances change over time, an individual might be able to explain that he/she still had the fear on the date of the interview, but the circumstances changed since then. In your situation, it is certainly advisable to use a reentry permit to travel rather than a passport from the country of persecution.

 

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.