Q & A October 30, 2005Q & A 1. RIGHTS OF A CHILD TURNING 21 WHO HAS CONDITIONAL RESIDENT STATUS SINCE PARENT MARRIED TO U.S. CITIZENCui Reader Asks: I came to U.S. under K2 visa in 9/2000 when I was 18 years old. My mother married her U.S. fiancé within 3 months and applied for green card. My mother and I received conditional green cards in 6/01. In 3/03 (90 days prior to the conditional green cards’ expiration date), we submitted I-751 form to remove the condition on residence. 8/03, we received a green card delay notice from immigration and was notified it would have to wait for another 1 or 2 years. However, as of now, we have not received the permanent resident cards. 1. I was told since I had turned 21 in 2003 and could not file
application with my parents. Was it the reason affecting my permanent
resident application? Dear reader: 1 The status of a conditional resident is that of a permanent resident in all respects except that the green card expires at the end of two years. As long as the conditional basis is lifted through your mother's I-751 (petition to remove the conditions on residence) via joint filing with her spouse, hardship waiver or bona fide marriage in cases of divorce, or as a battered spouse, you are entitled to a permanent residence card even if you are over the age of 21 so long as your mother married before you turned the age of 18 and you were either included in your mother's I-751 filing or you filed your own petition for removal of the conditional basis. 2 A conditional resident child is able to file an I-751 petition by himself or herself, but the adjudication will depend upon the resolution of your mother's case. By law, a dependent must file alone if his/her entry was more than 90 days after the parent's. Where the child's entry is within 90 days, the I-751 removal application can be filed at the same time as the parent's. 3 You can apply for naturalization five years from the date of your conditional residence card (an application can actually be accepted up to 90 days before the five-year mark), but a final adjudication on the naturalization will not occur until U.S.C.I.S. decides on the I-751 removal petition. In these situations, U.S.C.I.S. attempts to have the I-751 adjudicated prior to the date of the interview for naturalization. 4 If the removal petition is denied, you can apply for permanent residence through marriage to a U.S. citizen yourself, but you are not eligible to adjust status in the U.S. and must interview for residence at the appropriate American consulate or embassy in your home country. (That is because individuals coming to the U.S. under K-1/K-2 statuses are eligible for adjustment of status only through marriage with the K visa sponsor.) In that case, your husband would file an I-130 (petition for alien relative) on your behalf with the request that it be forwarded to the particular consulate or embassy in the home country. You should be aware that an American embassy or consular officer may be concerned as to whether your stay in the U.S. was illegal and invoked the 3 or 10 year bars against returning to the U.S.. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 imposed 3 and 10 year bars against return upon most individuals who have stayed in the U.S. illegally for 180 days or one year respectively after April 1, 1997 .
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Copyright © 2003 - 2005 Alan Lee, Esq. |
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