Q & A May 15, 2005

Q & A 1.

Q&A 1.

Alien Will Encounter Problems if He Later Attempts to Reenter The U.S. Under B-2 Status Soon After Leaving

Mr. Zhao asks:

My parents and sister came to US under B2 on 7/10/2003. My father was hired in 9/2003 by a wholesale company and applied labor certificate with Department of Labor. However, it has not been approved. My father applied extension twice and will be expired soon.

Will my father be allowed reentry if he leaves the country and later come in under B2? Will he be suspected as having immigration tendency and be denied at entry?

If they stay in the US and the Department of Labor approves his application within 180 days of his B2 expiration date, can they adjust status? If my father’s labor certificate is approved after 180 days and my father is the only on leaving US on time and reentered to adjust his status, can my mother and sister adjust their illegal status together with my father?

Mr. Lee Answers:

1 There is a good possibility that your father will encounter problems if he later attempts to reenter the U.S. under B-2 status soon after leaving. The Customs and Border Protection inspector may wonder why your father is attempting to re-enter the country under B-2 visa status so soon after having stayed in the U.S. for a long time.

2 Under section 245(k) of the immigration laws, an applicant for benefits under the employment base categories is allowed to file an I-485 application for adjustment of status to permanent residence if he/she has not exceeded 180 days of illegal time in the U.S. prior to the date of filing. According to the latest interpretation of the provision from U.S.C.I.S., illegal time is counted not only prior to but after the I-485 filing. Therefore, for example, an individual who has 155 days of illegal time prior to filing would be disqualified if he/she had another 26 days of illegality thereafter through illegal work. I further note that if your family is born in China, you will most likely not be able to submit an I-485 application for adjustment of status even if the labor certification is soon approved as a position in a wholesale company usually falls under the employment based third category, and that category is presently backed up for persons born in China. When the date backlogs in a preference category, only those who filed prior to the date are allowed to file applications for adjustment of status.

3 In the event that your father leaves the United States and reenters at a later date after the labor certification is approved and when the priority date is current to his date of filing, he may be able to adjust status to permanent residence assuming that there are no problems associated with his intention at the time of re-entering the U.S.. On the other hand, there is no provision under present law to allow his wife and daughter to similarly adjust with him if they are not maintaining legal status.

Copyright © 2003 - 2005 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.